author: HAMILTON, District Judge.

text:
    Mary DOE, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. No. 84-1132-15.
    United States District Court, D. South Carolina, Columbia Division.
    Filed Sept. 20, 1984.
    Opinion Corrected Sept. 24, 1984.

      Francis T. Draine, Columbia, S.C., John 0. McDougall, Jan L. Warner, Sumter, S.C., for plaintiff.
    Glen E. Craig, Asst. U.S. Atty., Columbia, S.C., for defendant.
   ORDER

HAMILTON, District Judge.

This matter is before the court upon the defendant United States of America’s (hereinafter “U.S.A.”) motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure due to this court’s lack of subject matter jurisdiction. The defendant contends that the plaintiff’s action is barred by the assault and battery and/or discretionary function exceptions to the Federal Tort Claims Act (hereinafter “FTCA”). 28 U.S.C. § 2680(a) and (h).

Mary Doe filed this action pursuant to the FTCA, 28 U.S.C. § 2671, et seq., to seek redress for various harms arising during a course of counseling by one Thomas F. Doherty, Major, United States Air Force from July, 1981, through July, 1982. Ms. Doe asserts six causes of action in her May 15, 1984, complaint: (1) breach of contract (2) breach of implied warranty in tort (3) assault or assault and battery (4) intentional or reckless infliction of emotional distress (5) medical malpractice (negligence) and (6) outrageous conduct (which involves the same allegations as # 4). As set forth by the plaintiff’s affidavit of July 23, 1982, the claims arise out of three or four incidents where Major Doherty exposed himself to the plaintiff and suggested sexual acts or conduct between them during the course of his coimseling of the plaintiff. It does not appear from the affidavit that the plaintiff was ever touched by Doherty, that she ever touched him, or that there was any participatory sexual conduct between the two. However, the plaintiff did state in her affidavit that she “was very scared about what this man try on me____” The central issue in addressing the instant motion to dismiss is whether Major Doherty’s conduct amounted to an assault or assault and battery or to medical malpractice (i.e. negligence).

As set forth in 28 U.S.C. § 2680(h):

The provisions of this chapter and section 1346(b) of this title shall not apply to—
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process____

The plaintiff, relying on the recent Fourth Circuit decision of Andrews v. U.S.A., 732 F.2d 366 (4th Cir.1984), contends that the acts of Doherty constituted medical malpractice and not assault and battery. In Andrews, a physician’s assistant, Warrant Officer Travis L. Gee, had sexual intercourse with the plaintiff therein after convincing her that it would be the best course of treatment for her severe depression. In addressing the assault and battery issue, the Fourth Circuit asserted:

[T]he Andrews’ claim did not arise out of an assault and battery. In South Carolina the tort of assault arises “if reasonable fear of bodily harm has been caused by the conduct of the defendant.” Herring v. Lawrence Warehouse Co. [222 S.C. 226] 72 S.E.2d 453, 458 (S.C.1952). Battery is defined as “the actual infliction of any unlawful, unauthorized violence on the person of another, regardless of its degree____” Id. No evidence supports the Government’s contention that Gee assaulted Mrs. Andrews. Although some evidence supports the conclusion that Gee’s initial physical contacts were unauthorized and offensive, those contacts were not the damaging acts. As the district court found, it was the sexual intercourse that occurred after Dr. Frost was alerted to Gee’s improper advances that caused “irreparable emotional harm ... to both plaintiffs in this case.” We have accepted the district court’s finding that Mrs. Andrews consented to engage in sex with Gee because she was induced to believe that it was the best course of treatment for her. Hence, the Andrews claim did not arise out of an assault or battery, (emphasis added). Id.

The Andrews court then went on to review several other cases in which medical professionals seduced patients under the guise of therapy, concluding that sexual intercourse did not constitute assault and battery.

As the defendant herein points out, the instant case is distinguishable from Andrews and is, in the opinion of the court, more similar to the earlier Fourth Circuit decision of Hughes v. United States, 662 F.2d 219 (4th Cir.1981). In Hughes, the Fourth Circuit held that the government could not be sued under the FTCA for any damages arising out of a postal worker’s taking sexual liberties with children. The court noted that even though the claims were framed in terms of negligence, they actually arose out of assault and battery committed by the postal worker.

In the instant case, Major Doherty exposed himself to the plaintiff intentionally, for the sole purpose of furthering his own self-interest. There is no evidence from which to conclude that the plaintiff thought Doherty’s conduct was the best course for her own treatment. Ms. Doe’s affidavit and her testimony at Doherty’s Court Martial show that she believed that he had a problem which caused his alleged exposure, (emphasis added). The conduct of Doherty, which by the plaintiff’s own admission scared her, was an assault within the South Carolina definition of that offense just as if it had been committed by any other person. The fact that Major Doherty was counseling the plaintiff, does not, in and of itself, convert his intentional tort into negligent medical treatment for the purposes of § 2680(h).

Additionally, as the Fourth Circuit found in Andrews, this court is of the opinion that Major Doherty’s conduct was far beyond the scope of his employment and thus not within the coverage of the FTCA. In South Carolina, “before a master is responsible for the torts of his servant, the servant must not only be acting in the course of his employment, or within the scope of his authority, but must be actually engaged in his employer’s business at the time of the injury.” Porter v. United States, 128 F.Supp. 590, 595 (D.S.C.), aff'd, 228 F.2d 389 (4th Cir.1955). As set forth by the South Carolina Supreme Court in Lane v. Modern Music, 244 S.C. 299, 136 S.E.2d 713 (1964), “An act is within the scope of a servant’s employment where reasonably necessary to accomplish the purpose of his employment and is in furtherance of the master’s business.”

As set forth in the Restatement of Agency:

§ 228. General Statement
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master, (emphasis added).

Restatement (Second) of Agency § 228. Thus, in order to recover against a master under the doctrine of respondeat superior, a plaintiff must make some showing that the servant’s actions were motivated in some part by a purpose to serve the master. See also, Rabon v. Guardsmark, Inc., 571 F.2d 1277 (4th Cir.1978).

Nothing in the record suggests that Doherty’s alleged exposures were a part of the plaintiff’s counseling and thereby within the scope of his employment. As previously mentioned, the plaintiff herself felt that Doherty’s sexual advances “had nothing to do with claimant’s treatment.” Plaintiff’s Administrative Claim 1111. It is clear that Major Doherty was only furthering his own self-interest when he allegedly exposed himself to the plaintiff and thus, was not acting within the scope of his employment as required by 28 U.S.C. § 1346(b) and § 2671 et seq. Andrews, 732 F.2d at 370.

The plaintiff next contends that the assault and battery bar of § 2680(h) has been superseded by the Medical Malpractice Immunity Act, 10 U.S.C. § 1089. That section provides in pertinent part:

(a) The remedy against the United States provided by section 1346(b) and 2672 of title 28 [Federal Tort Claims Act] for damages for personal injury, including death, caused by the negligent or wrongful act or omission of any physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel ... of the armed forces ... in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of his duties of employment therein or therefor shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, ... or other supporting personnel ... whose act or omission gave rise to such action or proceeding. (emphasis added).
(e) For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations).

Having determined that Major Doherty’s conduct was not within the scope of his employment, the court concludes that § 1089 is inapplicable to the case at bar. Additionally, after a review of the legislative history of the Medical Malpractice Immunity Act, this court is of the opinion the § 1089(e) was enacted to cover the situation in which a medical malpractice claim, arising from lack of informed consent to specific treatment, is drafted as a technical assault and battery. See, Nelson v. Patrick, 58 N.C.App. 546, 293 S.E.2d 829 (N.C.App.1982); and Bailey v. Belinfante, 135 Ga.App. 574, 218 S.E.2d 289 (Ga.App.1975). Section 1089(e) was not enacted to nullify the exclusion of an intentional assault and battery from the provisions of the FTCA as found in 28 U.S.C. § 2680(h). H.R.Rep. No. 333, 94th Cong., 1st Sess. (1975).

The remaining issue involved in this motion to dismiss involves whether the plaintiff’s remaining causes of action “arise out of” the alleged assaults and/or batteries. As set forth in Klein v. United States, 167 F.Supp. 410 (D.C.N.Y.1958), “any claim ‘arising out of ... false imprisonment’ is barred, obvioiusly meaning that any claim originating from, incident to or having connection therewith is excluded.” Id. at 412. It is clear that the gravaman of the plaintiff’s complaint is the assault and battery claim and that the remaining causes of action for breach of contract, breach of implied warranty, intentional infliction of emotional distress, medical malpractice and outrageous conduct “arise from” Major Doherty’s conduct in allegedly exposing himself to the plaintiff. Hughes v. United States, 662 F.2d 219 (4th Cir.1981) (wherein the district court correctly dismissed suits against the U.S.A. for negligent supervision which, although framed in terms of negligence, actually arose out of assaults and batteries committed by a postal worker); See also, Andrews, supra.

For the foregoing reasons and based on the cited authorities, this court concludes that the defendant’s motion to dismiss the complaint pursuant to 28 U.S.C. § 2680(h) and Rule 12(b)(1) of the Federal Rules of Civil Procedure should be granted.

THEREFORE IT IS ORDERED that the defendant United States of America’s motion to dismiss the complaint be, and the same hereby is, granted.

      . For purposes of this motion, the court will assume that there was both an assault and a battery.

      . Even though the plaintiff asserts that she was "scared,” intent to inflict injury (by the assaulting party) is not a necessary element of civil assault in S.C. Herring v. Lawrence Warehouse Co., 222 S.C. 226, 72 S.E.2d 453, 458 (1952).

      . There is no jurisdictional basis in the FTCA for the assertion of a breach of contract claim or breach of implied warranty in tort against the U.S.A. The FTCA only consents to suits arising out of injury caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment. 28 U.S.C. § 1346(b).

      . Having concluded that the plaintiffs claim is barred by the provisions of 28 U.S.C. § 2680(h), the court need not address the defendant’s "discretionary function” argument under 28 U.S.C. § 2680(a).


source: Caselaw Access Project

author: RALPH M. FREEMAN, District Judge.

license: Public Domain

text:
    AMERSHAM INTERNATIONAL PLC., Plaintiff, v. CORNING GLASS WORKS, et al., Defendants.
    No. 83-3853.
    United States District Court, E.D. Michigan, S.D.
    June 15, 1984.
    Neal A. Waldrop, Troy, Mich., Owen J. Murray, Merriam, Marshall & Bicknell, Chicago, Ill., for plaintiff.

      Gregory L. Curtner, Miller, Canfield, Paddock & Stone, Detroit, Mich., Maurice M. Klee, Bridgeport, Conn., for defendants.
    Alfred L. Michaelsen, William E. May-cock, Corning Glass Works, Corning, N.Y., for Corning.
   MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

This is a patent infringement action concerning Patent No. 4,366,143 (143) owned by plaintiff Amersham International PLC, a public limited company organized under the laws of the United Kingdom. This matter is before the Court on defendants’ motion to stay this proceeding pending final disposition of an interference proceeding in the United States Patent and Trademark Office which defendant Corning Glass Works has recently asked the Patent Office to institute.

According to defendants, Amersham’s patent claims a method for analyzing blood samples to determine the concentration of substances circulating in the blood, such as thyroid hormones. Apparently both Amersham and Corning sell disposable kits for determining the level of thyroid hormones in blood. Amersham contends that Coming’s kit infringes on its patent. Patent 143 was issued to Amersham on December 28, 1982. This suit was instituted on September 13, 1983. Both parties acknowledge that negotiations to settle this matter have been on-going.

Corning contends that more than three years before Amersham submitted its application for Patent 143, Coming had independently developed essentially the same technique. Coming’s work is protected by Patent No. 4,410,633, issued October 18, 1983. On December 23, 1983, some three months after this suit was instituted, Corning filed in the Patent Office its request that the Patent Office declare án interference proceeding between Amersham and Corning to determine priority of the invention. Corning is now asking this Court to stay this action pending action on its request for an interference proceeding.

In their brief, defendants set forth what they perceive to be the relationship between the interference proceeding and this action.

The interference proceeding encompasses the heart of the controversy between Amersham and Corning. As discussed in detail below, the outcome of that proceeding, no matter which party prevails, will simplify the contested issues in this action, and, if Corning prevails, will bring this action to an end. Moreover, an interference is the only means by which Corning can exercise all of its rights under the patent laws, i.e., Coming’s right to have issued to it those claims of the Amersham patent which Corning invented first, and thus that proceeding will have to go forward irrespective of the course of this action. Under these circumstances, it is plain that both economy to the judicial system and to the litigants supports a stay of this action.
Coming’s circa 1977 work on the analysis of thyroid hormones in blood gives it both a defense in this action and the opportunity to obtain for itself those claims of the Amersham patent in suit which relate to thyroid hormone analyses. The Corning work serves as a defense under 35 USC § 102(g) which provides that a patent is invalid if “before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it.” Defendants have specifically pleaded this defense in paragraph 9 of their Answer and Counterclaim.
The opportunity to obtain the Amersham claims for itself arises under 35 USC § 135 which is the statutory authority for interference proceedings in the Patent and Trademark Office. Significantly, with regard to the effect of an interference proceeding on this action, Section 135 specifically provides that “[a] final judgment adverse to a patentee from which no appeal or other review has been or can be taken or had shall constitute cancellation of the claims involved from the patent, and notice thereof shall be endorsed on copies of the patent thereafter distributed by the Patent and Trademark Office.” That is, those claims which Amersham loses in the interference will be cancelled from its patent and thus from this action.
The central issue with regard to both the Section 102(g) defense and the interference proceeding is the question of “priority of invention,” that is, as between Amersham and Corning, who made the invention first in this country. The specific purpose of an interference proceeding is to decide this question, and there can be no doubt that in view of its vast experience, the Patent and Trademark Office has acquired special expertise with regard to making this determination.
Under the statutory scheme established by Title 35 of the United States Code, the only way for Corning to exercise its right to seek Amersham’s claims for itself is through an interference proceeding. That proceeding requires a determination of priority of invention, and thus, no matter who should prevail in the interference, the issues in this action will be simplified by the record and decision of the Patent Office on this central issue.
Moreover, if Corning prevails, this action will be brought to an end. This is so because the claims which Corning is seeking in the interference are all of the claims of Amersham’s patent which even arguably could be alleged to be infringed by Coming’s thyroid hormone analysis kit. As indicated above, under 35 USC § 135, when a patentee loses an interference, the claims in interference are can-celled from its patent. In terms of Amersham’s patent, such cancellation would end the case because Amersham would no longer have any grounds upon which to base a charge of infringement.
In short, staying this action in view of the interference proceeding will both narrow the issues in the case and provide a mechanism whereby the Patent Office’s expertise regarding the issue of priority can be brought to bear on Amersham’s and Coming’s competing claims.

A motion to stay is directed to the sound discretion of the court, with the authority to grant or deny stemming from its inherent power to control its docket. American Life Insurance Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605 (1937). In support of their position, defendants have cited seven patent cases in which stays have been granted. Filtrol Corp. v. Kelleher, 467 F.2d 242 (9th Cir. 1972), cert. denied, 409 U.S. 1110, 93 S.Ct. 914, 34 L.Ed.2d 691 (1973); ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir.1967), cert. denied, 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140 (1968); American Telephone & Telegraph Co. v. Milgo Electronic Corp., 416 F.Supp. 951 (S.D.N.Y.1976); Childers Foods, Inc. v. Rockingham Poultry Marketing Co-op, Inc., 203 F.Supp. 794 (W.D.Va.1962); Research Corp. v. Radio Corp. of America, 181 F.Supp. 709 (D.Del.1960); Smalley v. The International Nickel Co., 114 U.S.P.Q. 140 (D.Del.1957); Cover v. Schwartz, 30 F.Supp. 261 (S.D.N.Y.1939). However, as plaintiff points out, in each case where an interference proceeding was pending, the interference proceeding was pending at the time the district court action was instituted.

Plaintiff has directed this Court’s attention to two cases where stays were denied where the district court action was initiated prior to the interference proceeding. Hughes Aircraft Co. v. General Instrument Corp., 374 F.Supp. 1166, 1167 (D.Del.1974); General Foods Corp. v. Struthers Scientific & International Corp., 309 F.Supp. 161 (D.Del.1970). In this case, no interference proceeding has been declared, defendant merely having filed a request for such a proceeding. The decision whether to declare such a proceeding is discretionary with the patent office. Thus, if the motion to stay is granted, the priority of invention issue present in this case would not be before any tribunal for decision.

At argument, defendants presented the Court with a third alternative. Defendants proposed that this action remain pending before this Court but that discovery be limited to the issue of priority. Presumably defendants would then ask this Court to grant the stay if the commissioner declared an interference proceeding. However, as noted above, defendants cited no authority supporting a stay where the interference proceeding was declared subsequent to the institution of a lawsuit. Thus this third alternative is viable only if this Court would be inclined to grant a stay at some future time.

This Court cannot find any justification for granting a stay in this case. At present, there is no duplication of effort. Only the possibility of such duplication exists. There is no reason that this action should not go forward. This Court would be hard pressed to justify a stay of plaintiffs action, delaying resolution of the action it filed in this forum, so as to allow defendants the time to await the Patent Office’s decision on the request for an interference proceeding. Even if such a proceeding is declared, plaintiff would have the opportunity to challenge the propriety of the proceeding before the priority issue is considered on the merits. This Court finds that it would be inappropriate to grant a stay of this action in light of the uncertainty of the interference proceeding. It is not known if such a proceeding will be declared or will survive a challenge by plaintiff if so declared. Nor is the Court aware of the time necessary for resolution of such a proceeding.

Therefore, for the reasons stated herein, defendants’ motion for a stay will be denied. An appropriate order shall be submitted.

      . An interference proceeding is an administrative proceeding initiated by the commissioner pursuant to 35 U.S.C. § 135 to determine priority of invention as between two or more applicants.

      . In Filtrol, supra, and Smalley, supra, a stay of one district court action was sought pending resolution of a second district court action.


author: ALLEN SHARP, Chief Judge.

text:
    Douglas LIPPERT, Plaintiff, v. Karen PENFOLD; Clifton Wright; and Indiana Department of Correction, Commissioner Gordon Faulkner, Defendants.
    No. S 84-147.
    United States District Court, D. Indiana, South Bend Division.
    Oct. 12, 1984.

      Douglas Lippert, pro se.
    Joseph M. Kalady, Legal Asst., Michigan City, Ind., for plaintiff.
    William Patrick Glynn, III, Deputy Atty. Gen., Indianapolis, Ind., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This ease is presently before this court on defendants’ motion to dismiss or in the alternative summary judgment which this court ordered converted to a summary judgment on May 10, 1984, including a Lewis v. Faulkner order to the plaintiff. The parties having fully briefed the issues, this case is now ripe for ruling.

The plaintiff is an inmate at the Indiana State Prison and has filed a 42 U.S.C. § 1983 claim alleging an intentional deprivation of a liberty interest by the denial of due process and coerced self-incrimination. The defendants deny plaintiff was deprived of due process or coerced into making certain statements. Plaintiff alleges that the defendants violated his constitutional right to due process during a Conduct Adjust Board (CAB) hearing when he was advised that he could not have a particular lay advocate represent him. The conduct in question before the CAB was plaintiff’s prior escape as an inmate at the Summit Farm Work Release Center. Upon his return from escape, plaintiff was sent to the Indiana State Prison for security reasons but his assignment remained at the Summit Farm Work Release Center. The uncontroverted facts show that at the time of the CAB hearing plaintiff remained an inmate assigned to the Summit Farm Work Release Center.

The procedural due process requirements involving CAB hearings was clearly established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, wherein the Supreme Court stated:

In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. Two of the procedures that the court held should be extended to parolees facing revocation proceedings are not, but must be, provided to prisoners in the Nebraska complex if the minimum requirements of procedural due process are to be satisfied. There are advance written notice of the claimed violation and a written statement of the fact finders as to the evidence relied upon and the reasons for the disciplinary action taken.

Nowhere in plaintiff’s complaint or claims does he allege that the requirements hereinabove stated were denied to him. Although the Supreme Court has held that not all constitutional rights are forfeited upon lawful incarceration, nonetheless, a prison disciplinary proceeding has never been equated to a criminal trial:

Prison disciplinary proceedings are not a part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. Cf. Morrissey v. Brewer, 408 U.S. [471] at 488, 92 S.Ct. [2593], at 2603 [33 L.Ed.2d 484]. Wolff v. McDonnell, supra.

The plaintiff claims that since the CAB failed to allow him the lay advocate of his choice (Joseph Kalady, an inmate assigned to the Indiana State Prison at the time of the CAB hearing) that the defendants have violated his constitutional rights to due process. The Supreme Court has also addressed this issue in Wolff v. McDonnell, supra, stating:

Where an illiterate inmate is involved, however, or where the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff.

In order to comply with this requirement the Department of Correction has instituted the following guidelines:

If the offender is illiterate or where the complexity of the issue makes it unlikely that the offencer will be able to collect and present the evidence necessary for an adequate comprehension of the case, or if an offender is in segretation the offender may be allowed to request advise and representation by a lay advocate. Staff may assist an offender in preparing a defense. A lay advocate need not be authorized for every offender. An offender in segregation is now allowed to serve as a lay advocate. In such cases, the CAB will provide the offender with a list of alternative choices from which the offender may select a lay advocate. (Para. 14, Offender Rights DOC Adult Authority Disciplinary Policy, 1980, bottom p. 15, top p. 16).

The uncontroverted fact is that plaintiff herein was informed that pursuant to DOC regulations the lay advocate must be an inmate from the same institution in order to be an authorized representative. Plaintiff had chosen an unauthorized lay advocate, in that, Mr. Kalady and the plaintiff were assigned to two different institutions. Upon being so informed the plaintiff refused to choose a lay advocate from Summit Farm Work Release Center and the CAB hearing proceeded.

The plaintiff has not alleged that the defendants failed to provide him with lay assistance or that they denied him access to or aid from a lay assistant or staff member pursuant to Wolff v. McDonnell, supra. The record clearly indicates that the defendants give plaintiff the opportunity to be represented by lay assistance or staff personnel. Plaintiff intelligently and knowingly denied said lay representation.

In applying the Wolff v. McDonnell, supra, standard, this court in Hendrix v. Faulkner, 525 F.Supp. 435, 447 (1981), aff'd in part, rev’d in part on other grounds, sub nom. Wellman v. Faulkner, 715 F.2d 269 (1983), stated:

Plaintiff Wellman secondly complains that he was denied the lay assistance of his choice at the disciplinary hearing ... (Wolff v. McDonnell, supra, quote above is cited) ... This does not rise to a constitutional level because the C.A.B. fully complied with the requirements of Wolff in regard to lay assistance.

(The Seventh Circuit in Wellman v. Faulkner, supra, reversed the district court only as to the issues spelled out in their decision and upheld the district court in all other issues, i.e., the right to a lay advocate of one’s choosing does not rise to the claim of constitutional level.)

This court in Lewis v. Faulkner, 559 F.Supp. 1316, 1320 (1983) held:

It is true that the State may not generaly prohibit lay advocates from advising or assisting other inmates. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Further, the states have an affirmative obligation to provide prisoners either with adequate law libraries, or persons trained in the law. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Garza v. Miller, 688 F.2d 480 (7th Cir.1982). Even so, inmates appearing before prison disciplinary boards have no right to counsel. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Thus, while an inmate may be entitled to the assistance of a lay advocate, the fact that he does not get the lay advocate of his choice does not rise to the level of a constitutional deprivation. Hendrix v. Faulkner, 525 F.Supp. 435 (N.D.Ind.1981).

This court is also fully aware of the Court of Appeals decision in Anthony v. Wilkinson, 637 F.2d 1130, 1144 (7th Cir.1980), wherein the Court in addressing the issue of whether an inmate was entitled to have the lay advocate of his choosing during a pre-transfer prison hearing pertaining to the transfer of an inmate from a state institution to a federal institution for special treatment the Court said:

Finally, although we are reluctant to order that an attorney be appointed to aid the inmate seeking to prevent his transfer, we believe that the prisoner should be allowed to rely upon a lay advocate or other assistant of his choice in formulating and presenting his case.

However, the Anthony v. Wilkinson, supra, case does not apply to the factual and procedural context that this court is dealing with in this case, and therefore, is not controlling on the issue before this court.

As in the Hendrix ease and the Lewis case, plaintiff here fails to show that the defendants denied him due process rights as established in Wolff v. McDonnell.

The plaintiff further alleges that he was coerced into making statements concerning his escape violating his right against self-incrimination. Again, plaintiff is requesting this court to apply the criminal standard against self-incrimination to a prison disciplinary hearing. However, plaintiff fails to cite any case law or statute in support of his position. Plaintiff makes no showing how the CAB proceedings violated the standard of Wolff v. McDonnell which applies in this situation. The plaintiff has not presented an issue which gives rise to a constitutional level claim. The claim against the prison disciplinary procedure does not state a cognizable claim under 42 U.S.C. § 1983. The prison disciplinary hearing does not give rise to the constitutional standard of self-incrimination as does a full fledged criminal trial.

Accordingly, it is the order of this court that defendants’ motion to dismiss or in the alternative motion for summary judgment be, and is, hereby GRANTED. This case is now ordered DISMISSED. SO ORDERED.

       THIS OPINION WAS AFFIRMED BY UNPUBLISHED ORDER FROM THE SEVENTH CIRCUIT ON SEPTEMBER 18, 1985.


author: PAUL, District Judge.

text:
    The CITY OF GAINESVILLE, FLORIDA, Plaintiff, v. ISLAND CREEK COAL SALES COMPANY, et al., Defendants.
    No. GCA 83-0052.
    United States District Court, N.D. Florida, Gainesville Division.
    Nov. 16, 1984.

      Ann Carlin, Asst. City Atty., Gainesville, Fla., M. Stephen Pitt, Merrill S. Schell, Wyatt, Tarrant & Combs, Louisville, Ky., for plaintiff.
    Kenneth Hart, Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, Fla., Janet P. Kane, Martin F. Brecker, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for Island Creek Coal.
    Stephen A. Oxman, Shearman & Sterling, New York City, for Enoxy Coal.
   ORDER

PAUL, District Judge.

This action was filed pursuant to the provisions of the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”), and the Florida RICO Act, Fla.Sta. § 895.03. Plaintiff, the City of Gainesville, Florida (“the City”) seeks to recover damages against the three named defendants for alleged fraudulent conduct with regard to a contract entered into between the parties, along with a declaration of its rights under that contract.

Defendant Island Creek Coal Sales Company (“Island Creek Sales”) is a corporation organized under the laws of Maine with its principal place of business in Lexington, Kentucky. It is engaged in the sale of coal, and is an indirect, wholly-owned subsidiary of Occidental Petroleum Company (“Occidental”), a corporation organized under the laws of California.

Defendant Island Creek Coal Company (“Island Creek Coal”) is a corporation organized under the laws of Delaware with its principal place of business in Lexington, Kentucky. It is engaged in the business of mining, producing, and selling bituminous coal. It is also indirectly wholly owned by Occidental.

Enoxy Coal, Inc. (“Enoxy”) is a corporation organized under the laws of Delaware with its principal place of business in Lexington, Kentucky. Incorporated in 1981, Enoxy is jointly owned by Occidental (through its subsidiaries) and Ente Nazionale Idrocarburi, (“ENI”) the National Hydrocarbons Board of Italy.

The following facts are undisputed by the parties. In 1977, the City seeking to secure a long term supply of coal for its Deerhaven II electrical generation facility, began negotiations with defendant Island Creek Sales. In 1978, the parties entered into an agreement under which the City agreed to purchase, and Island Creek Sales to furnish approximately 450,000 tons of coal annually for a ten year term beginning January 1, 1981. Further, the City was given the option of extending the term for up to five additional five-year periods thereafter.

The “Base Price” for the coal was set at $35.64 per ton, and is subject to adjustment with changes in Island Creek Sales’ “cost of mining, processing and loading”. The following are items of such cost recognized by the contract:

1. Changes in amounts paid to independent contractors to mine the coal;
2. Changes in wages under the Collective Bargaining Agreement;
3. Changes in employee benefit programs under the Collective Bargaining Agreement;
4. Changes in certain Federal, State, or local tax laws;
5. Changes in cost of supplies and outside services;
6. Changes in cost of compulsory insurance or Worker’s and Occupational Disease Compensation including black lung compensation;
7. Changes in cost of equipment rental and depreciation;
8. Capital expenditures and other costs attributable to changes in federal, state or local law, or changes in the Collective Bargaining Agreement;
9. Changes in royalty payments resulting from changes in the Base Price.

Plaintiffs memorandum in response, pg. 8.

In addition, the contract provides that Island Creek Sales be guaranteed a profit of at least $4.25 per ton, and rebate to the City one-half of any profit in excess of $6.00 per ton. These profit levels are tied to and fluctuate with the Consumer Price Index.

The Agreement provides that the coal supplied to the City is to be mined and processed primarily at the “Holden 22” mine in West Virginia. Coal may be substituted from another source, however, under certain conditions. At the time the parties entered into the contract, Island Creek Coal owned the mineral rights to, and operated, the Holden 22 site. Island Creek Coal was therefore deemed to be the “Producer” of the coal under the contract, and its costs were deemed to be those of the “Seller”, Island Creek Sales, for purposes of the base price adjustment and guaranteed profit clauses referred to above.

The assignment of the rights and obligations of the parties to the contract is subject to the following provision:

This Agreement and the rights and obligations hereunder shall not be assigned by either party without the prior written consent of the other party, which written consent shall not be unreasonably withheld; provided, however, that either party may without such consent merge or consolidate with another solvent corporation which assumes all of the obligations and liabilities of the assigning party, and no such merger, consolidation or sale shall be deemed a breach hereof.

The contract also contains an arbitration clause, which provides:

Any controversy, claim, counterclaim, defense, dispute, difference or misunderstanding arising out of or in relation to this Agreement, or the alleged breach thereof, which the parties are unable to settle by agreement, shall be settled by arbitration before a Board of three arbitrators selected in accordance with the Commercial Arbitration Rules of the American Arbitration Association as then in effect.
The arbitration proceeding shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, and judgment upon any award rendered by the said Arbitration Board may be entered in any court having jurisdiction thereof.
This provision shall survive the termination of this Agreement. Each party shall bear the expense of its own representation and any other expenses of the arbitration proceedings shall be shared equally by Buyer and Seller.

Delivery of coal under the contract actually began in November of 1980, to the apparent satisfaction of the parties. However, the price of coal available on the open market subsequently dropped to a level significantly below the contract price.

In October 1981, Occidental and ENI entered into a joint venture with respect to some petrochemical and coal operations. Ownership of certain property was transferred to the venture, which commenced operations on December 29, 1981. Ownership of the Holden 22 site was transferred to the venture entity responsible for coal operations, Enoxy Coal, under the terms of a “Coal Properties Agreement”, which further provided that Island Creek Coal would assign the Gainesville-Island Creek Sales contract to Enoxy, who would “become the producer of coal to be supplied under [the contract] and ... receive the proceeds from all coal shipped pursuant thereto”.

Island Creek Sales then sought the City’s consent to its assignment of the contract to Enoxy, which consent was not forthcoming. Occidental, ENI and Island Creek Coal proceeded to closing under the Coal Properties Agreement, amending that agreement to provide that Enoxy would sell Island Creek Sales all the coal which Island Creek Sales was obligated to deliver to the City under their contract, and that Island Creek Sales would pay Enoxy a price equal to the price received from the City. Thus, on December 29,1981, Island Creek Coal’s interest in the Holden 22 mine site was transferred to Enoxy.

In January 1983, the City demanded arbitration under Article XIII of the contract. In its demand, filed with the American Arbitration Association, the City sought a “declaration that Island Creek Coal Sales Company has breached the Agreement and that [the City] has the right to terminate it”. The nature of the dispute was described in the demand as:

Breach of contract in that Island Creek Coal Sales Company breached the attached “Coal Sales Agreement” due, inter alia, to conveyance of the source mine to a third person; by permitting a third person not contemplated in the Agreement to become the “Producer” of coal to be produced pursuant to the Agreement; and by assigning its obligations under the Coal Sales Agreement to a third person without the consent of the City of Gainesville.

The arbitration hearings were held in Louisville, Kentucky, at the City’s request, on May 10-11,1983, before a panel of three arbitrators selected by the American Arbitration Association. The parties submitted evidence and elicited testimony from ten witnesses during these hearings. At the end of the hearings, a briefing schedule was established; the arbitrators were to render their decision by September 1, 1983. Five days later, on May 16, 1983, the City announced it was terminating its contract with and would no longer accept coal from Island Creek Sales.

Upon being notified of the City’s termination of the Contract, Island Creek Sales moved to reconvene the arbitration panel and sought an award requiring the City to continue performing the contract until a decision could be rendered by the arbitrators. The arbitrators entered an interim award under which the City was to maintain the status quo until further decision by the panel. The City continued to refuse to accept coal from Island Creek Sales, however, contesting the validity of the interim award. This award was confirmed by the United States District Court for the Western District of Kentucky in an order dated July 22, 1983.

One week later, the City filed the present action. The complaint states five counts against the defendants. Count One seeks a declaration that the arbitrators’ interim order is without legal effect and therefore not binding upon the City. Count Two demands judgment of treble damages against all defendants for violation of RICO, 18 U.S.C. § 1962(c) and (d). Count Three alleges the same RICO claim as Count Two, with an alternative theory of damages. Count IV alleges violation of Florida Statutes § 943.462 and § 943.464, now § 895.03 and § 895.05, the Florida RICO Act, and demands treble damages thereunder. Count V claims damages for alleged common law fraud under the laws of Florida and Kentucky.

By order dated June 24, 1983, the United States District Court for the Western District of Kentucky enjoined the City from proceeding with Count One of this action, on the grounds that it had exclusive jurisdiction over the matters involved in that claim. Defendants have moved to dismiss Counts Two, Three, and Four for failure to state claims, for summary judgment as to Counts Two, Three, Four, and Five, and for stay of this action pending arbitration. The Court has previously denied the motion for stay and entered an order restraining defendants from further proceeding with pending related arbitration in Kentucky until further order of the Court (doc 64). On September 22, 1983, the arbitration panel issued a final award in which they unanimously found that defendant Island Creek Sales had not breached its Agreement with the City under any of the three theories advanced by the City.

Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”. Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the burden of demonstrating the absence of any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In determining whether this burden has been met, the Court must view the evidence in the light most favorable to the non-moving party, and draw all factual inferences in that party’s favor. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981); United States v. Hangar One, Inc., 563 F.2d 1155 (5th Cir.1977). The Court may not resolve any dispute of material fact; the motion must be denied if such an issue is found to exist. Griffis v. Delta Family-Care Disability, 723 F.2d 822, 824 (11th Cir.1984); Cole v. Chevron Chemical Co., 427 F.2d 390, 393 (5th Cir.1970), cert. denied, 414 U.S. 858, 94 S.Ct. 67, 38 L.Ed.2d 109 (1973).

Defendants assert that this action is barred by the doctrine of collateral estoppel on the basis of the City having unsuccessfully litigated the factual issues involved here in the prior arbitration proceeding. Our Court of Appeals recently listed the three prerequisites to the application of collateral estoppel as:

1) that the issue, at stake be identical to the one involved in the prior litigation; 2) that the issue have been actually litigaged in the prior litigation; and 3) that the determination of the issue in the pri- or litigation have been a critical and necessary part of the judgment in that earlier action.

Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1501 (11th Cir.1984), citing Deweese v. Town of Palm Beach, 688 F.2d 731, 733 (11th Cir.1982). The doctrine bars relitigation of “any particular legal or factual issue” meeting these prerequisites. Walton Motor Sales, Inc. v. Ross, 736 F.2d 1449, 1456 n. 12 (11th Cir.1984).

The first issue the court must decide is whether the arbitration proceeding constitutes a “prior litigation” entitled to preclusive effect. Valid arbitration decisions are accorded res judicata and collateral estoppel effect. E.g., Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 172 (D.C.Cir.1981); Maidman v. O’Brien, 473 F.Supp. 25, 29 (S.D.N.Y.1979). For such a decision to be valid, it must be within the scope of an arbitration agreement, Schattner v. Girard, Inc. 668 F.2d 1366, 1368 (D.C.Cir.1981). In the present case, the City does not seriously dispute that the issues it presented to the arbitration panel regarding whether its Agreement with Island Creek Sales had been breached were within the scope of that agreement’s arbitration clause.

The City does challenge the arbitration award’s preclusive effect, however, on the ground that the award must be confirmed by the District Court for the Western District of Kentucky before it constitutes a “final judgment” entitled to such effect. Plaintiff cites only Ufheil Construction Co. v. Town of New Windsor, 478 F.Supp. 766 (S.D.N.Y.1979), for this proposition. The Ufheil court, in applying New York law, did state that “[t]he doctrines of res judicata and collateral estoppel apply to issues adjudicated in arbitration where the arbitration award has been entered as a judgment”, Id. at 768, but did not further and unnecessarily hold that arbitration awards must be confirmed and entered as judgments to be entitled to such effect in federal courts. Further, the Court has located no authority imposing such a requirement. Finally, it is noted that the district court in Kentucky entered an order on October 18, 1984 finally confirming the arbitration award.

The City’s Demand for Arbitration raised three issues: 1) whether the Agreement was breached by conveyance of the Holden 22 mine to Enoxy, 2) whether the Agreement was breached by the substitution of Enoxy as the “Producer” of coal under the Agreement, and 3) whether the Agreement was breached by the assignment of Island Creek Sales’ obligations under the Agreement to Enoxy without the City’s consent. After two days of hearings and extensive briefing by the parties, the panel found the Agreement had not been breached.

In the present action, the City’s fraud and RICO claims are all based upon the defendants’ mailing of allegedly deceptive coal invoices to the City. These invoices were deceptive, the City claims, because the “Producer” costs reflected thereon were actually incurred by Enoxy, rather than Island Creek Coal, the original “Producer” under Agreement. This core allegation forms the basis for all the City’s claims, including the RICO counts, which are predicated on the theory that two or more such acts of mail fraud constitute a “pattern of racketeering activity” sufficient to support a civil action under 18 U.S.C. § 1962 and Fla.Stat. § 895.05.

Significantly, the City does not allege that the invoices were fraudulent in any way other than that the “Producer costs” incorporated into them were incurred by an entity other than Island Creek Coal. There is no allegation that the costs were higher as a result of Enoxy having become the Producer. No claim is made that any such charge was improper in amount or was a cost not otherwise properly “passed through” under the terms of the Agreement. Clearly, the City’s claims all revolve around the single complaint that Enoxy was substituted as “Producer” in contravention of the Agreement, which complaint it ha§ litigated and lost.

In sum, the Court finds that the issue of whether the disputed invoices were fraudulent as incorporating producer costs not allowable under the contract necessarily includes the issue of whether Enoxy was impermissibly substituted as Producer under the Agreement; that arbitration of this precise issue was demanded by the City, who framed the issues, fully litigated them, and lost; and that determination of the issue, as an ultimate issue to be decided, was necessary to the judgment of the arbitration panel.

The City argues that collateral estoppel cannot apply in this action because its federal RICO claim is a nonarbitrable statutory right bestowed by federal protective legislation, and as such was not submitted to arbitration. This argument has two flaws. First, no authority has been cited or found for the proposition that civil RICO claims, like federal Antitrust, Securities, and Title VII claims, may not be resolved by arbitration. Further, assuming this is the case, when the factual matters underlying such claims are in fact submitted to arbitration by agreement of the parties, and are thereby resolved, the parties are precluded from relitigating them in a subsequent action. See, e.g., Schattner v. Girard, Inc., 668 F.2d 1366, 1369 (D.C.Cir.1981) (“Although a party is not required to arbitrate facts underlying a securities law claim, ... once the facts underlying those claims are in fact arbitrated the decision of the arbitrators is binding.”) A party who has had its claims decided in arbitration may not then simply bring the same claims under new labels. Schattner, supra, at 1368; Goldstein v. Doft, 236 F.Supp. 730, 734 (S.D.N.Y.1964), aff'd, 353 F.2d 484 (2d Cir.1965), cert. denied, 383 U.S. 960, 86 S.Ct. 1266, 16 L.Ed.2d 302 (1966). In the present case, the City, having unsuccessfully litigated its claims as a contractual dispute is now seeking to bring them under the labels of fraud and RICO. Having bargained for the right to submit its disputes to arbitration, and having done so, the City is not free to rephrase its complaint and proceed to submit its case to a different forum in hopes of a more satisfactory resolution.

Accordingly, it is ORDERED:

1. Defendants’ motion for summary judgment (doc 26) is GRANTED as to Counts Two, Three, Four, and Five.

2. Defendants’ motion to dismiss counts Two, Three, and Four is DENIED as MOOT.

3. The order entered by this Court on February 13, 1984 (doc 64) restraining defendants from further proceeding with arbitration styled “RE:52 181 0006-84, Island Creek Coal Sales Co., Lexington, Ky— and — City of Gainesville, Florida, Gaines-ville, Fla.” is hereby RESCINDED.

4. In light of the Court’s ruling on defendant’s motion for summary judgment and plaintiff having been enjoined from proceeding with the remaining count in this action by the United States District Court for the Western District of Kentucky, this action is hereby DISMISSED with prejudice; plaintiff to take nothing.

5. The Clerk is directed to enter a final judgment in favor of the defendants on the claim of the plaintiff, the Court, however, reserving jurisdiction to hear and determine any issue of costs or fees to which defendants may be entitled.


author: GASCH, District Judge.

text:
    Eileen DIMOND, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
    Civ. A. No. 83-1938.
    United States District Court, District of Columbia.
    Dec. 7, 1984.

      John P. Coale, Washington, D.C., for plaintiffs.
    Frederic W. Schwartz, Jr., Washington, D.C., for plaintiff Thomas Harley.
    Judith W. Rogers, John H. Suda, William J. Earl, Beverly J. Burke, Corp. Counsel, Washington, D.C., for Dist. of Col., Marion Barry, Mayor of Dist. of Col., Margurite C. Stokes, Act., Supt. of Ins., John Touchstone, Act. Dir., D.C., Dept, of Transp., and Maurice Turner, Chief, Metro. Police Dept.
   MEMORANDUM

GASCH, District Judge.

This is an action challenging the District of Columbia Compulsory/No-Fault Motor Vehicle Insurance Act of 1982, D.C. Law 4-155, D.C.Code § 35-2101 et seq. (1984 Supp.) (Insurance Act). The plaintiffs include both residents and nonresidents of the District of Columbia. The defendants are the District of Columbia and individual officials of the District of Columbia Government.

Plaintiffs assert that the Insurance Act violates the District of Columbia Self-Government and Governmental Reorganization Act (Self-Government Act), D.C.Code 1-201 et seq., and the United States Constitution. Specifically, they urge the Court to declare the Insurance Act unconstitutional because it violates due process and equal protection rights protected by the fifth amendment, impermissibly burdens interstate commerce, and interferes with plaintiffs’ rights to contract, to travel and to petition the government. Defendants have moved to dismiss plaintiffs’ second amended complaint or in the alternative for summary judgment. Plaintiffs also have filed for summary judgment.

For the reasons set forth below, the Court grants defendants’ motion to dismiss many of plaintiffs’ claims for lack of standing and grants defendants’ motion for summary judgment as to the constitutionality of the compulsory insurance requirements of the Insurance Act (Sections 4(a), 4(b)(1), and 7(c), D.C.Code §§ 35-2103(a), 35-2103(b)(1), 35-2106(e)). The Court further holds that plaintiff Harley is entitled to summary judgment as to the Insurance Act’s provision barring recovery for noneconomic loss unless medical expenses exceed $5,000 (Section 6(b)(6), D.C.Code § 35-2105(b)(6)).

DISCUSSION

A. Standing

The threshold issue is whether any of the plaintiffs has standing to challenge the Insurance Act in federal court. The Supreme Court recently summarized the constitutional requirements for standing in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982):

Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision____”

454 U.S. at 472, 102 S.Ct. at 758. The plaintiff’s injury or threat must be “distinct and palpable,” and “real and immediate,” not “conjectural or hypothetical.”

In addition to the constitutionally-mandated requirements for standing, federal courts have adopted a set of prudential principles for guidance in determining whether the federal judicial power should be invoked. Valley Forge Christian College, supra, 454 U.S. at 474-75, 102 S.Ct. at 759-60. Courts, for example, have refrained from exercising jurisdiction over “abstract questions of wide public significance” which amount to “generalized grievances,” and have required that the plaintiffs claim of injury arguably fall within the “zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”

Applying the foregoing analysis to the particular facts in this case, the Court concludes that plaintiff Harley has standing to challenge Sections 6(a) and 6(b)(6) of the Insurance Act, which bar suits against tortfeasors for noneconomic loss unless the victim’s medical expenses exceed $5,000 or other specified exceptions apply. Plaintiff Harley, a resident of the District of Columbia, purchased motor vehicle insurance as required by the Insurance Act. He alleges that he sustained physical injuries in a motor vehicle accident in the District of Columbia after the Insurance Act became effective. He avers that his medical expenses will likely not exceed the $5,000 threshold and that he likely does not qualify under any other exceptions to the Act which would allow him to sue the alleged tortfeasor for pain and suffering which is described as noneconomic loss. Plaintiff Harley’s apparent inability to sue constitutes injury in fact, is traceable to Sections 6(a) and 6(b)(6) of the Insurance Act, and is likely to be redressed by a favorable decision.

Plaintiff Lisa Van Susteren is a resident of the District of Columbia and a licensed driver. As a District of Columbia motor vehicle owner, she is required under Section 7(c) of the Insurance Act to purchase no-fault coverage for accidents that may occur outside of the District of Columbia. Plaintiff Van Susteren has standing to challenge the constitutionality of this compulsory requirement of the Insurance Act. The required purchase of no-fault insurance is a discernible and definable economic injury sufficient to satisfy the injury-in-fact test, it can be traced to Section 7(c) of the Insurance Act, and it can likely be redressed by a decision rendering that provision invalid. Furthermore, as a motor vehicle owner residing in the District of Columbia, plaintiff Van Susteren clearly falls within the zone of interests to be regulated by the Insurance Act.

Plaintiffs Eileen Dimond and Henry Brent are residents of the State of Maryland and Virginia, respectively, and are licensed drivers. They challenge the constitutionality of Section 4(b)(1) of the Insurance Act on a number of grounds. That section requires nonresidents of the District of Columbia whose motor vehicles are driven in the District to maintain auto insurance coverage that meets the requirements of the Insurance Act. With the exception of their first amendment claims, plaintiffs Dimond and Brent have standing to challenge the constitutionality of Section 4(b)(1). The required purchase of additional insurance satisfies the injury in fact test, and the other constitutional requirements for standing as well.

Plaintiffs claim that the Insurance Act is null and void because the District of Columbia City Council failed to comply with the procedural requirements of the Self-Government Act, which requires the City Council to read, a bill twice in substantially the same form before passage. Section 412(a), D.C.Code § 1-229(a). None of the plaintiffs has standing to challenge the Insurance Act on this ground. As the Supreme Court recently explained, “an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Allen v. Wright, — U.S. -, 104 S.Ct. 3315, 3326, 82 L.Ed.2d 556 (1984). Plaintiffs’ claim is nothing more than a generalized grievance alleging abstract injury in nonobservance of the Self-Government Act. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 217, 223 n. 13, 94 S.Ct. 2925, 2930, 2933 n. 13, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 176-77, 94 S.Ct. 2940, 2946-47, 41 L.Ed.2d 678 (1974).

There are a host of other provisions of the Insurance Act for which the plaintiffs do not have standing to challenge because none of the plaintiffs has been affected by the provisions or has shown any imminent threat of injury resulting from application of these provisions. For example,, plaintiffs challenge the constitutionality of Section 11(b)(4) of the Insurance Act, which deducts certain government benefits that an accident victim receives from the benefits the victim receives' under the no-fault insurance policy. D.C. Code § 35-2110(b)(4). None of the plaintiffs, however, has had a claim for benefits reduced because of government benefits, nor has any plaintiff been imminently threatened with such a reduction.

B. Bar to Recovery for Pain and Suffering (Section 6(b)(6))

Section 6 of the Insurance Act precludes persons injured in motor vehicle accidents from suing the alleged tortfeasor for injuries covered by the Act’s personal injury protection benefits. There are a number of exceptions to this limitation on the right to sue. One of those exceptions provides:

A person may be liable for any noneconomic loss if medical expenses of a victim or his or her survivors exceeds $5,000, inclusive of diagnostic x-ray costs____

Section 6(b)(6), D.C.Code § 35-2105(b)(6). “Noneconomic loss” is defined as:

pain, suffering, inconvenience, physical or mental impairment, and other nonpecuniary damage recoverable under the tort law applicable to injury arising out of the maintenance or use of a motor vehicle.

Section 3(19), D.C.Code § 35-2102(19).

Plaintiff Harley contends that because his medical expenses for injuries suffered in an auto accident will likely not exceed $5,000, Section 6(b)(6) bars him from suing the alleged tortfeasor for pain and suffering and other noneconomic loss that he has incurred in violation of equal protection principles under the fifth amendment. Specifically, he claims that the provision establishes an arbitrary and irrational classification between accident victims whose medical expenses exceed $5,000 and those whose expenses fall below that threshold amount.

The test for determining whether a legislative enactment that distinguishes between different groups of persons violates equal protection principles is whether “the legislative classification ... itself is rationally related to a legitimate governmental interest.” United States Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In making such determinations, courts must not substitute their social and economic beliefs for the judgment of legislatures which have broad powers to experiment with economic problems. Ferguson v. Skrupa, 372 U.S. 726, 730-31, 83 S.Ct. 1028, 1031-32, 10 L.Ed.2d 93 (1963); see Sproles v. Binford, 286 U.S. 374, 388-89, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932). With this principle in mind, the Court concludes that Section 6(b)(6) of the Insurance Act violates equal protection rights embodied in the due process clause of the fifth amendment.

To apply the equal protection analysis, the Court must first determine the purpose of the statute in question. The Insurance Act is designed to remedy deficiencies in motor vehicle insurance policies in the District. The City Council found that under the former system, auto accident victims often received no compensation or inadequate compensation for their losses in part because of the many uninsured motorists in the District and the expense and delay in requiring policyholders involved in accidents to establish the liability of the alleged tortfeasor in order to satisfy the prerequisites for compensation. The Insurance Act, Section 2(a), D.C.Code § 35-2101(a). As a result, the City Council passed the Insurance Act with the express purpose of providing “adequate protection for victims who are injured in the District or who are injured while riding in motor vehicles registered or operated in the District.” Section 2(b), D.C.Code § 35-2101(b).

Adequate protection is to be provided at reasonable and affordable rates. Although the legislative history on Section 6(b)(6) is relatively sparse, the City Council apparently reasoned that elimination of the right to recover for “small and speculative claims for noneconomic loss in favor of basic, certain and prompt protection” would reduce litigation costs, and in turn insurance costs. As a result, insurance rates would be “reasonable and affordable.” The record before the Court is devoid of any basis for the conclusion that a claim for pain and suffering by a motor vehicle accident victim whose medical expenses total, for example, $4,500, is “small and speculative” and does not involve serious injury. By setting an unreasonably high threshold of $5,000 in medical expenses, the City Council unreasonably barred motor vehicle accident victims who suffer serious injuries from recovering for pain and suffering and other noneconomic loss. Such provision is not rationally related to the purpose of providing “adequate protection” to motor vehicle accident victims.

State court decisions upholding the constitutionality of other no-fault insurance provisions that bar recovery by an injured party for intangible damages unless the individual’s medical expenses exceed a specified amount are readily distinguishable from the case at bar. Those cases involved threshold limits ranging from $500 to $1,000, amounts far less than the $5,000 limit set by the Insurance Act. Moreover, such cases were based on the respective legislatures’ findings that the threshold limit would eliminate expensive litigation only for minor claims for nonserious injuries, while maintaining protection for serious injuries. The Insurance Act’s $5,000 limitation goes far beyond elimination of minor claims for nonserious injuries.

Given the Insurance Act’s objective of providing adequate protection for motor vehicle accident victims at a reasonable cost, the Court finds that the $5,000 threshold is not limited to barring recovery for pain and suffering for minor injuries. Accident victims will not obtain adequate protection. Accordingly, the provision is not rationally related to the purpose of the statute in violation of equal protection principles of the fifth amendment.

C. Compulsory Insurance Requirements Applicable to Residents of the District of Columbia

Plaintiff Susteren, a resident of the District of Columbia, challenges the compulsory insurance requirements of Sections 4(a) and 7(c) of the Insurance Act as beyond the legislative powers of the District of Columbia City Council, an unconstitutional burden on interstate commerce, and a denial of due process. Section 4(a) requires residents of the District of Columbia to maintain certain insurance, including out-of-state coverage, if they own a motor vehicle which must be registered in the District or if they are required to obtain a reciprocity sticker in the District. Section 7(c) of the Insurance Act requires insurance companies doing business in the District to include out-of-state liability coverage in their personal injury liability insurance policies. The compulsory requirements of the Insurance Act are within the legislative authority of the City Council and are constitutional.

Plaintiff Susteren claims that the out-of-state coverage provisions violate Section 602(a)(3) of the Self-Government Act, which prohibits the enactment of “any act ... which is not restricted in its application exclusively in or to the District----” D.C.Code § l-233(a)(3). The Court disagrees. Section 4(a) of the Insurance Act applies only to District of Columbia residents who own a motor vehicle required to be registered or who are required to obtain a reciprocity sticker. It is a legitimate exercise of a state’s police power to require no-fault insurance as a condition to the operation of a motor vehicle. Likewise, it is within the District of Columbia’s power to prescribe conditions for registration of motor vehicles, including purchase of out-of-state liability coverage, and to require insurance companies doing business in the District to provide certain coverage. Such requirements further the purpose of the Insurance Act — adequate protection for victims injured in the District or while riding in motor vehicles registered or operated in the District. Section 2(b), D.C.Code § 35-2101(b).

Plaintiff Susteren’s claim that Sections 4(a) and 7(c) of the Insurance Act burden interstate commerce in violation of the Commerce Clause equally is without merit. She argues that the compulsory requirement to obtain out-of-state liability coverage in effect penalizes her for driving outside of the District of Columbia because she must pay higher insurance rates for the additional coverage.

The Supreme Court has established a balancing test to determine whether a state statute violates the Commerce Clause: “[wjhere the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 441, 98 S.Ct. 787, 794 (1978) (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970)). Under this test, state highway safety statutes have a strong presumption of validity. Id. 434 U.S. at 444, 98 S.Ct. at 795-96; Bibb v. Navajo Freight Lines, 359 U.S. 520, 524, 79 S.Ct. 962, 965, 3 L.Ed.2d 1003 (1959).

Applying the Commerce Clause analysis to the compulsory insurance requirements of the Insurance Act, the Court finds that such provisions do not unconstitutionally burden interstate commerce. As explained above, Congress delegated to the District of Columbia broad powers to regulate insurance. Even if national and local interests conflict in this area, the minor burden on interstate commerce imposed by requiring District of Columbia residents to purchase out-of-state liability insurance is far outweighed by the District’s legitimate interest in providing adequate protection to motor vehicle accident victims who are injured while riding in motor vehicles registered or operated in the District. The District of Columbia City Council determined that compulsory purchase of no-fault insurance was necessary because of a motor vehicle’s great potential for causing personal injury. Section 2(a), D.C. Code § 35-2101(a).

Plaintiff Susteren next argues that Sections 4(a) and 7(c) of the Insurance Act deny her substantive due process guaranteed by the fifth amendment because she is deprived of the freedom to choose the insurance protection best suited to her needs. This claim is totally without merit. Plaintiff offers no support whatsoever for her claim that freedom to choose a suitable type of insurance coverage is a previously recognized constitutional right. Indeed, state courts that have addressed the issue have consistently upheld the power of state legislatures to require motorists to obtain liability insurance. See Shavers v. Kelley, 402 Mich. 554, 267 N.W.2d 72, 85 (1978); Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291, 1306 (1974); see also Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971) (dicta).

D. Compulsory Insurance Requirements Applicable to Nonresidents of the District of Columbia

Section 4(b)(1) of the Insurance Act requires District of Columbia nonresidents whose motor vehicles are operated in the District to maintain insurance that meets the requirements of the Insurance Act. Plaintiff Dimond claims that this provision creates an impermissible burden on interstate commerce, violates her constitutional right to travel freely interstate, and interferes with her right to contract in violation of the Contract Clause of the United States Constitution.

Section 4(b)(1) does not impose an unconstitutional burden on interstate commerce by imposing, as plaintiff Dimond claims, higher insurance premiums for additional insurance coverage for driving in the District. The District’s interest in providing adequate protection for motor vehicle accident victims who are injured in the District outweighs whatever incidental effect, if any, this provision has on interstate commerce. See Part C, supra. The City Council found that before the Insurance Act was passed, many motor vehicle operators in the District had no motor vehicle insurance or other financial sources sufficient to pay for losses resulting from an accident in the District. Section 4(b) is reasonably intended to remedy this serious deficiency in the prior law.

Plaintiff Dimond’s claim that Section 4(b)(1) unconstitutionally infringes upon her right to travel interstate also must fail. She contends that the proper test for determining whether a statute violates the fundamental right to travel is whether the statute is necessary to promote a compelling state interest. The Supreme Court has applied the compelling state interest standard to invalidate state statutes imposing durational residency requirements for eligibility for welfare benefits, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), for voting, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and for free non-emergency medical care, Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). As the Court in Shapiro explained, “any classification which serves to penalize the exercise of [a constitutional] right, unless shown to be necessary to promote a compelling government interest, is unconstitutional.” 394 U.S. at 634, 89 S.Ct. at 1331 (emphasis in original).

The Court agrees with defendants that the compelling state interest test is inapplicable to Section 4(b)(1). Such provision does not establish a classification, such as durational residency requirements, which operates to penalize persons from traveling freely interstate. Any person, whether a resident or non-resident of the District of Columbia, must have certain insurance coverage as a precondition to operating a motor vehicle in the District of Columbia. Furthermore, Section 4(b)(1) does not amount to a “penalty” for traveling into the District. It does not deny a fundamental political right as in Dunn, nor does it deny the basic necessities of life as in Shapiro and Maricopa County Travel by motor vehicle on a state’s highways is subject to reasonable regulation and applying the rational relationship test, the Court finds that the requirement that nonresidents maintain certain insurance coverage if they operate a motor vehicle in the District of Columbia is reasonable and rationally related to the District’s legitimate interest in protecting persons who are injured in motor vehicle accidents in the District.

Lastly, plaintiff Dimond claims that Section 4(b)(1) imposes an unconstitutional burden on her right to contract for the type of insurance coverage she prefers in conformance with the law of the state where she resides. To determine whether the Insurance Act violates the Contract clause of the United States Constitution, the Court must inquire whether the Insurance Act “operate[s] as a substantial impairment of a contractual relationship,” and if so, whether there is a legitimate and significant public purpose behind the Act. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411-13, 103 S.Ct. 697, 704-06, 74 L.Ed.2d 569 (1983); Allied Structural Steel Company v. Spannaus, 438 U.S. 234, 244, 247, 249, 98 S.Ct. 2716, 2722-25, 7 L.Ed.2d 727 (1978). In determining the extent of the impairment, the Court must consider that the District of Columbia has regulated motor vehicle insurance in the past. See Energy Reserves Group, Inc., supra, 459 U.S. at 411, 103 S.Ct. at 704-05; Allied Structural Steel Company, supra, 438 U.S. at 242, n. 13, 98 S.Ct. at 2721, n. 13.

Plaintiff Dimond’s claim is without merit. There is no evidence before the Court of substantial impairment of plaintiff Dimond’s contractual rights. Even if this were so, which is especially doubtful in light of the fact that motor vehicle insurance traditionally has been subject to substantial regulation, it is clear that the District of Columbia City Council has a significant and legitimate public purpose in requiring nonresidents driving in the District to obtain the same motor vehicle insurance coverage required of District of Columbia residents. Such requirement is a necessary and reasonable means of ensuring that victims of motor vehicle accidents in the District receive compensation for their losses, regardless of. whether the driver at fault is a resident or nonresident.

CONCLUSION

The compulsory insurance requirements of the Insurance Act are a legitimate exercise of the legislative authority of the District of Columbia City Council and do not impermissibly burden interstate commerce or violate substantive due process or the right to travel, to contract, or to petition the government for redress. Elimination of the right of a motor vehicle accident victim to sue for non-economic loss solely because the victim’s medical expenses are less than $5,000, however, violates equal protection principles under the fifth amendment. An unreasonably high threshold limitation of $5,000 in medical expenses goes well beyond elimination of unnecessary litigation of minor claims and is not rationally related to the Insurance Act’s expressed purpose of providing adequate protection for motor vehicle accident victims who are injured in the District of Columbia or while riding in motor vehicles registered or operated in the District. As the provisions of the Insurance Act are severable, see note to Section 2, D.C.Code § 35-2101, the invalidity of Section 6(b)(6), D.C.Code § 35-2105(b)(6), does not affect the validity of any other provision that can be given effect without such section. Accordingly, the Court grants summary judgment for defendants as to the compulsory insurance requirements of the Act, and grants summary judgment for plaintiffs as to Section 6(b)(6) of the Act.

      . Plaintiffs also claim that the Insurance Act is null and void because the Self-Government Act, the source of authority for enacting the Insurance Act, is itself unconstitutional. Relying on Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), plaintiffs argue that the Home Rule Act permits Congress to veto bills of the District of Columbia City Council without presentment to the President as required by Art. 1, § 7 of the Constitution. Legislation recently enacted, however, amends the Self-Government Act to provide for the disapproval of City Council action by joint resolution and presentment to the President within a specified time period. Pub.L. No. 98-473, Cong.Rec. H 11894 (Oct. 10, 1984). The new law also deems valid, in accordance with the provisions of the new law, all laws passed by the Council of the District of Columbia prior to the effective date of the new legislation. Accordingly, the Court need not reach the merits of plaintiffs’ challenge to the legislative veto provision of the Self-Government Act.

      . Quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607-08, 60 L.Ed.2d 66 (1979) and Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924-25, 48 L.Ed.2d 450 (1976).

      . Allen v. Wright, — U.S. -, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)).

      . O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974) (quoting Golden

        v. Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969)). Furthermore, plaintiffs must establish standing to raise each of the statutory challenges they assert. Worth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975).

      . Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (quoting Warth v. Seldin, 422 U.S. at 499-500, 95 S.Ct. at 2205-06); accord, Allen v. Wright, supra, 104 S.Ct. at 3324-25.

      . Id. (quoting Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184, (1970)); accord, Allen v. Wright, supra, 104 S.Ct. at 3325.

      . Plaintiffs Dimond and Brent lack standing to complain that Section 4(b)(1) interferes with their first amendment rights to enter the District of Columbia to petition the Government or that the threat of a fine or imprisonment for failure to comply with such provision has a chilling effect on their ability to enter the District to exercise their first amendment rights. Their alleged injuries are merely speculative and nonspecific; plaintiffs Dimond and Brent have not shown that they in fact have been precluded from exercising their first amendment rights in the District. Furthermore, “allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325-26, 33 L.Ed.2d 154 (1972). There must be some concrete harm, either past or immediately threatened, apart from the “chill” itself. United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1378, 1380 (D.C.Cir.1984). Plaintiffs, however, have not personally been threatened with sanctions for noncompliance with the Insurance Act, nor have they shown that such threats are imminent.

      . E.g., immobilization of motor vehicles and suspension of driving privileges (D.C.Code § 35-2103(b)(2) and (d)(2)(A)); personal injury protection benefits for reasonably necessary expenses (D.C.Code § 35-2104(c)(l)); liability for damages for medical and rehabilitation expenses and work loss (D.C. Code § 35-2105(b)(1)); required and optional insurance and benefits (D.C.Code § 35-2106); immunity for disclosure of cancellation or nonrenewal (D.C.Code § 35 — 2109(j)); reduction for certain benefits (D.C.Code § 35-2110(b)); notice to insured of filing of civil action (D.C.Code § 35-2111(a)(2)); statute of limitations (D.C.Code § 35-2111(a)); taxicab exemption (D.C.Code § 35-2111(e)); applicability of the Insurance Act to Washington Metropolitan Area Transit Authority; recovery for mental impairment (D.C.Code §§ 35-2102(19), 2105(b)(4), and 2111(b)); and insurance rate making (D.C.Code § 35-1703).

      . Even plaintiffs acknowledge that none of them has been injured or imminently threatened with injury by application of Section 6 of the Insurance Act, which plaintiffs claim precludes recovery for mental impairment that is not medically demonstrable in violation of their due process rights. Plaintiffs' post-hearing memorandum of law on standing, filed June 22, 1984.

      . Although the fifth amendment does not contain an equal protection clause, it forbids discrimination that is “so unjustifiable as to be violative of due process.” United States Department of Agriculture v. Moreno, 413 U.S. 528, 533 n. 5, 93 S.Ct. 2821, 2825 n. 5, 37 L.Ed.2d 782 (1973), quoting Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964).

      . Report from the Chairperson of the Committee on Public Services and Consumer Affairs to District of Columbia City Council Members on Bill 4-140, "Compulsory Motor Vehicle Insurance Act of 1981,” at 2 (Feb. 16, 1982), Attachment B to Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Summary Judgment and in Reply to Plaintiff’s Opposition to Defendants' Motion to Dismiss or for Summary Judgment.

      . Memorandum of Points and Authorities in Support of Motion of Defendants to Dismiss Plaintiffs’ Second Amended Complaint or in the Alternative, for Summary Judgment, at 38.

      . Montgomery v. Daniels, 38 N.Y.2d 41, 378 N.Y.S.2d 1, 340 N.E.2d 444 (1975) ($500 limit); Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974) ($500 limit); Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) ($750 limit); Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974) ($1,000 limit).
      Defendants’ attempt to distinguish between the $750 threshold in Singer v. Sheppard, supra, for example, and the Insurance Act is without merit. Although defendants claim that it is reasonable the City Council considered the prevailing costs of medical care in 1983 and the cost of living in the District of Columbia before establishing the $5,000 threshold amount, defendants cannot point to any evidence in the record to support such claim.

      . Id.

      . In light of the Court’s holding, the Court does not address plaintiffs' claim that the threshold limitation requirement in Section 6(b)(6) deprives this Court of jurisdiction in violation of Section 602(a)(8) of the Self-Government Act, which prohibits the District of Columbia City Council from enacting any act relating to the United States District Court for the District of Columbia.

      . Section 4(a) provides:
      Each owner of a motor vehicle required to be registered or obtain a reciprocity sticker in the District shall maintain insurance for payment of the benefits required by this chapter for personal injury protection, property damage liability protection, 3rd-party liability coverage for accidents occurring outside of the District, and uninsured motorist protection. This insurance shall be in effect continuously during the motor vehicle’s period of registration or reciprocity.
      D.C.Code § 35-2103(a).

      . Section 7(c) provides in pertinent part:
      Each insurer selling or offering to sell personal injury protection in the District shall include with that insurance out-of-state liability coverage. Out-of-state liability coverage shall provide that any liability to an insured to pay for personal injury, arising from an accident outside of the District, in accordance with applicable law, shall be paid by the applicable insurer up to the amount established in the policy.
      D.C.Code § 35-2106(c). Although this provision is directed to insurers doing business in the District of Columbia, it directly affects District of Columbia residents who are required under the Insurance Act to obtain no-fault insurance because personal injury liability insurance policies sold in the District must include out-of-state liability coverage.

      . See Shavers v. Kelley, 402 Mich. 554, 267 N.W.2d 72, 85 (1978), cert. denied sub nom., Allstate Ins. Co. v. Kelley, 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 303 (1979); Montgomery v. Daniels, 38 N.Y.2d 41, 378 N.Y.S.2d 1, 340 N.E.2d 444, 452 (1975); Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291, 1310 (1974).

      . The District of Columbia City Council has a broad delegation of police power from Congress to regulate insurance. Firemen’s Insurance Company of Washington, D.C. v. Washington, 483 F.2d 1323, 1327 (D.C.Cir.1973).

      . The Commerce Clause grants Congress the power "[t]o regulate Commerce ... among the several states____” United States Constitution, Art. I, § 8, cl. 3.

      . Section 4(b)(1) provides:
      A person who is not a resident of the District who owns a motor vehicle shall not operate the motor vehicle, or permit the motor vehicle to be operated in the District, unless insurance for payment of the benefits required by this act for personal injury protection, property damage liability protection, and uninsured motorist protection is provided and maintained during the time that the motor vehicle is present in the District.
      D.C.Code § 35 — 2103(b)(1).

      . Significantly, the Supreme Court has emphasized that even some durational residency requirements may not be penalties. Memorial Hospital v. Maricopa County, 415 U.S. at 258-59, 94 S.Ct. at 1082-83.

      . The Contract clause provides: "No State shall ... pass any ... Law impairing the Obligation of Contracts.” U.S. Const., Art. 1, § 10, cl. 1.


author: CURTIN, Chief Judge.

text:
    Stanley PRUSAK and Alice Prusak, Plaintiffs, v. BETHLEHEM 1980 SALARIED PENSION PLAN and Bethlehem Steel Corporation, Defendants.
    Civ. 83-434C.
    United States District Court, W.D. New York.
    Dec. 14, 1984.
    Lipsitz, Green, Fahringer, Roll, Schuller & James (David B. Hermann, of counsel), Buffalo, N.Y., for plaintiffs.
    Phillips, Lytle, Hitchcock, Blaine & Huber (Michael R. Moravec, of counsel), Buffalo, N.Y., for defendants.
   CURTIN, Chief Judge.

Plaintiffs Stanley and Alice Prusak, husband and wife, seek a judgment declaring that they are entitled to a lump-sum payment under defendants’ pension plan. They seek an order directing defendants to pay all benefits owed and ask for damages for mental anguish. Defendants Bethlehem 1980 Salaried Pension Plan and Bethlehem Steel Corporation have moved for summary judgment.

Plaintiff Stanley Prusak worked for Bethlehem Steel from March 1950 until June 30, 1982. He was a participant in defendants’ pension plan. Shortly before his retirement, plaintiff applied for a lump-sum payment of his retirement benefits under section 3.12 of the plan. Plaintiff’s application was denied by the General Pension Board on the ground that plaintiff and his wife were not in good health. Plaintiffs are still entitled to receive, and are receiving (Docket Item 5, p. 20), regular monthly pension payments. Should Mr. Prusak pre-decease Mrs. Prusak, she would receive surviving spouse’s benefits (Item 1, Ex. A and B).

Defendants’ motion for summary judgment is granted. Courts should only intervene in the administration of an employee benefit' plan when the trustees transgress their fiduciary duties by acting in an arbitrary and capricious manner. Morse v. Stanley, 732 F.2d 1139, 1145 (2d Cir.1984). Neither the defendants’ method for determining who is entitled to receive optional lump-sum payments nor their determination that plaintiffs are not in good health was arbitrary and capricious.

Under this plan, when a participant applies for a lump-sum payment, he submits a report of his physician, which is reviewed by the Corporate Medical Director. If the two physicians disagree and the participant’s application is denied, he may appeal to the General Pension Board. The medical records are forwarded to Aetna Life Insurance Company for an independent review based on medical underwriting standards. If a participant amasses more than 150 “debit points,” he is found not to be in good health (Item 4, Ex. A, Kempken affidavit).

Plaintiff Stanley Prusak was assigned 200 debit points for hypertension, and plaintiff Alice Prusak was assigned 350 debit points for coronary artery disease and mitral valve prolapse. On review, Aetna Life Insurance Company found neither plaintiff to be in good health (Item 4, Ex. A). Plaintiffs do not deny these medical conditions, nor do they dispute the determination that they are not in good health. Plaintiffs simply claim that there is no evidence that these conditions have reduced their life expectancies (Item 1, 118). In order to be eligible for lump-sum payment, however, plaintiffs had to present evidence of good health to the Board, which they failed to do.

Plaintiffs claim that the program has been discriminatorily administered, in that defendants have awarded full lump-sum payments to other participants in situations not distinguishable from plaintiffs’ (Item 1, 1110).

The Corporate Medical Director is unaware of anyone who was assigned more than 150 debit points being found in good health for purposes of lump-sum payment (Item 4, Ex. A). David W. Kempken, Secretary of the General Pension Board, states that no other applicant has been found to have the same disorders as Mr. Prusak and that only one other applicant suffered from Mrs. Prusak’s illnesses. That application was also denied (Item 4, Ex. A). Plaintiffs present no evidence to the contrary in response to the summary judgment motion.

The mechanism for determining who received lump-sum payments is not arbitrary or capricious. Czyz v. General Pension Board and Bethlehem Steel Corp., 578 F.Supp. 126 (W.D.Pa.1983). Mr. Kempken said the “good health test” was developed to protect plan assets from depletion. He stated that the Aetna system was adopted in late 1981 to attain uniformity and consistency in the face of burgeoning applications for lump-sum payments (Item 4, Ex. A). In designing procedures to protect the resources of the fund for the benefit of all participants, defendants were fulfilling their fiduciary duties (Morse, supra.)

Plaintiffs seem to rely on the argument that the lump-sum pension option, despite its permissive language, is a vested right as part of an accrued benefit (Item 15). Section 3.12 of the plan provides for an optional alternative of a lump-sum payment: “[T]he Plan Administrator may make a lump-sum payment ... only if ... the application is accompanied by evidence, satisfactory to the General Pension Board, of the good health of the participant and the spouse ...” (Item 1, Ex. A).

No specific mode of payment is required by ERISA. Panpano v. Michael Schiavone and Sons, Inc., 680 F.2d 911 (2d Cir.1982), cert. denied, 459 U.S. 1039, 103 S.Ct. 454, 74 L.Ed.2d 607. At most, ERISA provides that if an optional plan is offered, it be the actuarial equivalent of what the participant would have received under the regular retirement age.

Even if a right to apply for optional lump-sum payments has accrued, participants must satisfy the conditions set forth in Section 3.12 of the plan. These conditions are not arbitrary and capricious. Summary judgment is granted to defendants.

So ordered.