author: EDWARD C. REED, Jr., District Judge.

text:
    Paul LAXALT, Plaintiff, v. C.K. McCLATCHY, Publisher; McClatchy Newspapers, a corporation, the Sacramento Bee, a newspaper; Frank McCulloch; Michael Kidder; Denny Walsh; Art Nauman; Fresno Bee, a newspaper; George Gruner; Don Slinkard; Modesto Bee, a newspaper; Sanders LaMont; Ray Nish; Doe Corporations I through XX; Doe Partnerships I through XX; Doe Associations I through XX; Does I through XX, Defendants. C.K. McCLATCHY; McClatchy Newspapers, a California corporation; Frank McCulloch; Denny Walsh; and Art Nauman, Counterclaimants, v. Paul LAXALT, Counterdefendant.
    CV-R-84-407-ECR.
    United States District Court, D. Nevada.
    Jan. 22, 1985.

      Richard L. Davenport, Reno, and Seymour Shainswit, New York City, for plaintiff.
    Ray Larroca, James L. Brosnahan, Linda E. Shostak, c/o Ray Larroca, San Francisco, Cal., for McClatchy & McClatchy Newspapers, Sacramento Bee, McCulloch, Kidder, Nauman, Fresno Bee, Gruner, Slindard, Modesto Bee, Lamont & Nish.
    Thomas E. Kotoske, Palo Alto, Cal., for Dennis Walsh.
    Brent T. Adams, Associate counsel, Reno, Nev., for all defendants.
   OPINION

EDWARD C. REED, Jr., District Judge.

The defendants have filed objections to the Order entered by U.S. Magistrate Phyllis Halsey Atkins on November 16, 1984, wherein she denied their motion that she disqualify herself. They ask that this District Court review the matter and disqualify the Magistrate pursuant to 28 U.S.C. § 455(a).

The facts are not in dispute. Magistrate Atkins candidly attached her statement of the facts to her Order, and the parties do not debate its accuracy or completeness. In July 1984, the Magistrate learned that an additional U.S. district judgeship had been authorized by Congress for the District of Nevada. She wrote a letter to the plaintiff/ counterdefendant herein, Paul Laxalt, setting forth some of her qualifications and expressing her interest in the position. Mr. Laxalt was and is the senior U.S. Senator from Nevada. In that capacity he recommends to the President of the United States his choice to fill any federal judgeship vacancy in the State. Senator Laxalt has not delegated that prerogative to a selection committee but, rather, has retained it for himself.

Magistrate Atkins provided a copy of her letter to Senator Laxalt’s administrative assistant in Reno. Further, she requested the support of U.S. Congresswoman Barbara Vucanovich, who formerly had been an assistant to the Senator.

Late in July 1984, the Magistrate was informed that all persons (about a dozen) who had expressed an interest in the judgeship vacancy would be interviewed. Three employees of Senator Laxalt interviewed her on August 2, 1984, the interview lasting about an hour. The Senator did not recommend Magistrate Atkins. The State court judge he did recommend was nominated by the President, confirmed by the U.S. Senate, and has assumed the position of U.S. District Judge. Subsequently, the Magistrate received a letter from Senator Laxalt acknowledging her interest and participation in the process of filling the vacancy. It is Magistrate Atkins’ recollection that she was introduced to Mr. Laxalt once when he was serving as Lieutenant Governor of Nevada and a second time after he had been elected Governor of the State. Other than the foregoing, she recalls no contact with him.

The defendants point out that there need not be any suggestion of bias — the appearance of partiality is sufficient to require disqualification under § 455(a). They urge that the uncontroverted facts would cause a reasonable person to question the Magistrate’s impartiality, for she has made no comment as to whether she will seek appointment to any federal judicial opening that might arise in the future. The defendants’ hypothesis is that if such an opening was to occur, and she decided to apply for it, and Mr. Laxalt were still the senior Senator, then any adverse rulings in the instant action might jeopardize her chances. Also, the defendants note that members of Senator Laxalt’s staff will be deposed, and may be called as witnesses in the trial of this case. The fear is expressed that the Magistrate may have trouble evaluating in an impartial manner any issues that might arise concerning the staff members.

The specific objections made by the defendants to the Magistrate’s Order are that she applied a wrong standard (a duty to sit) in determining whether to disqualify herself, and that she failed to recognize that the undisputed facts indicate that her impartiality might reasonably be questioned. They argue that the appearance of impropriety is sufficiently strong to mandate her disqualification, especially because any close question must be resolved in favor of recusal. It is emphasized that the Magistrate’s contacts with the Senator were very recent and that he still is in a position to benefit her.

In her Order, Magistrate Atkins concluded the defendants’ position is based so completely on speculation (as to what might happen in the future) that a reasonable person with knowledge of all the facts would not question her impartiality.

In opposing the defendants’ motion, the plaintiff has denoted the repeated references in the Magistrate’s Order to the standard she was applying, namely whether a reasonable person with knowledge of all the facts would conclude that her impartiality might reasonably be questioned. Also, the plaintiff points out that the “duty to sit” phrase was used only once, in a footnote to the Order, and was clearly intended to reflect the Magistrate’s belief that she has an obligation to continue with the case because the facts do not give rise reasonably to an appearance of partiality.

This action was assigned on October 18, 1984, to Magistrate Atkins for all pretrial proceedings within her jurisdiction. The motion to disqualify her was nondispositive, in that it would not resolve the issues raised by the claims for relief alleged in the pleadings. See Fed.R.Civ.P. 72(a). A ruling by a magistrate on a nondispositive pretrial matter should be set aside by a district court on review only if found to be clearly erroneous in fact or contrary to law. Princiotta v. New England Tel. & Tel. Co., Inc., 532 F.Supp. 1009, 1011 (D.Mass.1982); Webb v. Califano, 468 F.Supp. 825, 827-8 (E.D.Cal.1979); 28 U.S.C. § 636(b)(1)(A); Local Rule of Practice 11(c)(I)(A)(2); Fed.R.Civ.P. 72(a). As will be discussed below, a reasonable man standard is controlling here; i.e., whether a reasonable person with knowledge of all the facts would conclude that the Magistrate’s impartiality might reasonably be questioned. United States v. Nelson, 718 F.2d 315, 321 (9th Cir.1983). The testing of the reaction of a reasonable person is generally reviewable pursuant to the clearly erroneous standard. United States v. Booth, 669 F.2d 1231, 1236 (9th Cir.1982).

A finding is “clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The clearly erroneous standard is applicable here, although the Court acknowledges that, as the defendants contend, the legislative history of 28 U.S.C. § 455(a) indicates that disqualification “is a sensitive question of assessing all the facts and circumstances in order to determine whether the failure to disqualify was an abuse of sound judicial discretion.” 1974 U.S.Cong. & Adm.News 6351, 6355; see also Home Placement Service v. Providence Journal Co., 739 F.2d 671, 674 (1st Cir.1984). A reviewing court will find an abuse of discretion only when there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Pue v. Sillas, 632 F.2d 74, 78 (9th Cir.1980). All the facts and circumstances are being assessed in this Court’s consideration of the defendants’ objections to the Magistrate’s Order. There would seem to be little difference, therefore, between deciding whether she committed a clear error of judgment or whether she committed a mistake. The reviewing court must feel a “definite and firm conviction” in either case. For the record, the clearly erroneous standard is held to govern here.

§ 455(a) reads: “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” It is the appearance of impartiality that is the material issue, not the ability to prove or disprove the absence of actual prejudice. Hall v. Small Business Admin., 695 F.2d 175, 179 (5th Cir.1983). “The test for disqualification under section 455(a) is an objective one: whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir.1983).

Disqualification must rest upon a factual basis. In re United States, 666 F.2d 690, 695 (1st Cir.1981); Home Placement Service v. Providence Journal Co., supra at 674; United States v. Corr, 434 F.Supp. 408, 412 (S.D.N.Y.1977). The subjective belief of the moving litigants is not determinative. Id. at 413; Fong v. American Airlines, Inc., 431 F.Supp. 1334, 1337 (N.D.Cal.1977), aff'd on oth. gds., 626 F.2d 759 (9th Cir.1980).

Many judges have a history of activity in politics or strong political connections; such a background is insufficient by itself to require recusal. Home Placement Service, supra at 675; see also In re United States, supra at 692-3. Even where a litigant or a witness supported the judge when he sought appointment to the judgeship, disqualification is not warranted. Warner v. Global Natural Resources PLC, 545 F.Supp. 1298, 1300-2 (S.D.Ohio 1982); Baker v. City of Detroit, 458 F.Supp. 374, 375-7 (E.D.Mich.1978). Judges regularly are in contact with congressmen, whether in connection with proposed legislation, court money matters or attendance at public functions. A reasonable person would not reasonably harbor doubts as to the judge’s impartiality by reason thereof. See United States v. Poludniak, 657 F.2d 948, 954 (8th Cir.1981). A judge is not expected to live in isolation. Through the years he is bound to have developed many business and personal contacts in the community, and to have acquired supporters and critics. The public’s perception is that the judge’s impartiality is not reasonably to be questioned when he presides over a case in which such a person has an interest. In re United States, supra at 696-7.

Disqualification should not be based on tenuous speculation; if it were, litigants would have veto power over the assignment of judges. Id. at 694. A reasonable person would not reasonably doubt a judge’s impartiality on the basis of speculation. See United States v. Miranne, 688 F.2d 980, 985 (5th Cir.1982); Hawaii-Pacific Venture Capital Corp. v. Rothbard, 437 F.Supp. 230, 234 (D.Haw.1977).

The contacts between Magistrate Atkins and Senator Laxalt and his staff, as shown by the established facts, all were legitimate and to be expected in the ordinary course of events. Nothing about them reasonably could give rise to a feeling that the Magistrate would not be impartial in a case where the Senator is a litigant. This holding is not dependent on whether Magistrate Atkins plans again to apply for a judgeship in the future, does not plan ever to apply again, or doesn’t know in her own mind whether she might seek a future judicial opening. The facts could not create any reasonable doubt in a reasonable person as to her impartiality. Speculation, as to events that might occur in the future and their possible effect on the Magistrate and the Senator, must be resorted to in order to support any contention as to an appearance of partiality. As noted above, recusal or disqualification should not be based on speculation. This is true even though a judge should resolve any close issue in favor of disqualification if a reasonable person might question his impartiality. Hall v. Small Business Admin., supra at 178-9. There are policy reasons why a judge does have an obligation not to recuse himself when no probative evidence reasonably gives rise to doubt as to his impartiality. Blizard v. Frechette, 601 F.2d 1217, 1221 (1st Cir.1979).

Magistrate Atkins’ Order entered November 16, 1984, wherein she denied the motion to disqualify herself from this action, is AFFIRMED.


source: Caselaw Access Project

author: HADEN, Chief Judge.

license: Public Domain

text:
    Gary GILLESPIE, Plaintiff, v. K.A. BREWER and C.W. McDonald, Defendants.
    Civ. A. No. 80-0188-E(H).
    United States District Court, N.D. West Virginia, Elkins Division.
    Jan. 25, 1985.

      Timothy Cogan, Wheeling, W. Va., for plaintiff.
    Dana Davis, Asst. Atty. Gen., Office of W. Va. Attorney General, Charleston, W. Va., for defendants.
   MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

I. Background

Plaintiff’s counsel petitions the Court for an award of attorney’s fees pursuant to the Civil Rights Attorney’s Fees Act of 1976, 42 U.S.C. § 1988. The action upon which this petition is based alleged Plaintiff’s civil rights were violated by members of the West Virginia Department of Public Safety during the November, 1979, security shakedown imposed at the West Virginia State Penitentiary at Moundsville following a mass escape from that institution. By Executive Order No. 3-79 issued on November 20, 1979, then Governor Rockefeller found that the penitentiary imposed “an imminent threat of a disaster of major proportion to the safety and welfare of the inhabitants of this State” and, therefore, declared a state of emergency pursuant to W.Va.Code, § 15-5-6. The Order set forth remedial actions to be implemented by the Superintendent of the Department of Public Safety to restore order and security at the prison. The original complaint filed by the Plaintiff pro se named as Defendants John D. Rockefeller IV and Harley Mooney who were, at the time of the alleged incident, Governor of the State of West Virginia and Superintendent of the Department of Public Safety (commonly referred to as the state police), respectively. The complaint alleged the Plaintiff was beaten by state police officers and bitten by an attack dog upon the command of a state police officer.

By Order entered December 18, 1980, this Court appointed Petitioner and two other attorneys (who do not join in this fee petition) to represent the Plaintiff and 14 other inmates who had filed civil actions in forma pauperis seeking redress for civil rights violations allegedly occurring during the security shakedown. On September 18, 1981, this Court granted Plaintiff’s motion for leave of Court to amend the complaint so as to include West Virginia Department of Public Safety personnel Corporal K.A. Brewer and Trooper C.A. McDonald, who were identified by the Plaintiff as the persons who assaulted him. The amended complaint was filed on September 30, 1981. The amended complaint prayed for $50,000 compensatory and $50,000 punitive damages. After the Defendants in the eleven similar cases prevailed at trial, the Plaintiff in this case accepted the Defendants’ $200 settlement offer. The settlement agreement included a clause in which all parties agreed to bear their own costs and attorneys’ fees.

II. Requirements for Award of Attorney’s Fees

The Civil Rights Attorney’s Fee Act of 1976 provides that in any action under 42 U.S.C. § 1983 the district court “in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the cost.” The Fourth Circuit has interpreted this statute as requiring a two-step analysis in determining the appropriateness of such an award. Bonnes v. Long, 599 F.2d 1316 (4th Cir.1979) cert. denied 455 U.S. 961, 102 S.Ct. 1476, 71 L.Ed.2d 681 (1982). The trial court must first decide whether the litigant seeking the award of attorney’s fees is the “prevailing party”. 599 F.2d at 1318. If the Court decides the party represented by the fee claimant has prevailed, the Court must then decide, based on its informed discretion, whether a fee should be awarded. 599 F.2d at 1318. To determine the propriety of a fee award in this case, the Court will address the two areas of inquiry prescribed by Bonnes.

A. Prevailing Party. It should be noted at the outset of this discussion that the fact that this litigation was resolved via a settlement agreement as opposed to a trial on the merits does not preclude this Court from finding that the Plaintiff is the prevailing party herein. It is well-established that the term “prevailing party” encompasses a plaintiff who obtains a favorable settlement as opposed to a judgment issued by a court or jury. Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980); Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Smith v. University of North Carolina, 632 F.2d 316 (4th Cir.1980); Bonnes v. Long, 599 F.2d at 1318; Chicano Police Officers’ Association v. Stover, 624 F.2d 127 (10th Cir.1980); Dawson v. Pastrick, 600 F.2d 70 (7th Cir.1979); Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978); Brown v. Culpepper, 559 F.2d 274 (5th Cir.1977); Parker v. Matthews, 411 F.Supp. 1059 (D.D.C.1976) affirmed sub nom Parker v. Califano, 561 F.2d 320 (D.C.Cir.1977). It is also clear that to be a “prevailing party”, one need not win on every issue or obtain all of the relief requested. Disabled in Action v. Mayor and City Council of Baltimore, 685 F.2d 881 (4th Cir.1982); Brown v. Culpepper, 559 F.2d at 277; Bly v. McLeod, 605 F.2d 134 (4th Cir.1979); Bonnes v. Long, 599 F.2d at 1318; Lytle v. Commissioners of Election of Union County, 541 F.2d 421 (4th Cir.1976); Nadeau v. Helgemoe, 581 F.2d at 278-79. This rather broad view of what constitutes a prevailing party is consistent with the fact that, in matters of statutory construction, the “Courts have taken an extremely liberal view on nearly every interpretive question that has arisen thus far under Section 1988.” Gates v. Collier, 616 F.2d 1268, 1275 (5th Cir.1980); see also Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 37 (2d Cir.1978).

Applying these principles to the case at bar, it appears that the only element of this case that mitigates against a finding that the Plaintiff is the prevailing party is the amount of the settlement— $200. This relatively low monetary amount arguably makes the agreement vulnerable to allegations that it is simply a nuisance settlement. This is precisely what the Defendants contend, arguing that the small dollar amount of the settlement is evidence that the case was settled only for nuisance value in order to save the cost of further litigation. The Defendants also point to their successes at the trials of the eleven other similar cases as further proof that the agreement was purely a nuisance settlement. The Defendants contend that the courts have refused to award attorneys’ fees in cases involving nuisance settlements. However, the four cases cited .by the Defendants in support of their proposition have very little, if any persuasive value for the simple reason that none of these cases involved a nuisance settlement. The Chicano Police Officers’ Association and Parker cases do contain language to the effect that attorneys’ fees are not properly awarded in nuisance cases. However, inasmuch as these cases had nothing whatsoever to do with nuisance cases, the statements contained therein referred to above, and reproduced in the margin, are perhaps more notable as classic examples of dicta, rather than as authority on the issue of whether attorneys’ fees should be awarded in nuisance cases. In any event, the matter under scrutiny is not susceptible to such a simplistic approach. The determination of whether a plaintiff is the prevailing party cannot be made by attempting to affix such an ambiguous label as “nuisance settlement” to the final compromise reached by the litigants. The difficulty in determining the applicability of such a nebulous term as “nuisance settlement” is illustrated by this case. The Plaintiff points to the unsuccessful prosecution of the eleven similar cases and to the Defendants’ decision to settle this case as evidence that the settlement of this action was not reached merely for nuisance value. The Defendants, on the other hand, rely upon the same evidence to support their claim that the settlement was in fact a nuisance settlement. Fortunately, the Fourth Circuit has set forth a specific test to be employed in deciding whether the party represented by the fee claimant was the “prevailing party” for purposes of awarding attorney’s fees under Section 1988. Therefore, this Court will forsake Defendants’ suggested inquiry into whether the parties’ agreement is a nuisance settlement in favor of applying the more precise test required in this Circuit.

In Bonnes the Fourth Circuit described the manner in which the trial court should decide whether a fee claimant is the “prevailing party” as follows:

“This inquiry is properly a pragmatic one of both fact and law that will ordinarily range outside the merits of the basic controversy. Its initial focus might well be on establishing the precise factual/legal condition that the fee claimant has sought to change or effect so as to gain a benefit or be relieved of a burden. With this condition taken as a benchmark, inquiry may then turn to whether as a quite practical matter the outcome, in whatever form it is realized, is one to which the plaintiff fee claimant’s efforts contributed in a significant way, and which does involve an actual conferral of benefit or relief from burden when measured against a benchmark condition.”

Bonnes, 599 F.2d at 1319.

As noted previously, one can “prevail” by obtaining a favorable settlement and the prevailing party need not win on every issue or obtain all the relief requested. See cases cited supra at p. 221. Having secured from Defendants a $200 payment in satisfaction of his claim against them, the Plaintiff is, at least ostensibly, the “prevailing party” as a “quite practical matter”. However, the Defendants have put this payment in contention by arguing that inasmuch as Plaintiff prayed for $100,-000 compensation in his pleadings, he cannot now claim to have prevailed when he obtained only $200, or less than one-half of one percent of the “benchmark” ad damnum. For the reasons discussed below, the Court cannot agree with the strict mathematical interpretation given the Bonnes test by Defendants and finds that the Plaintiff is the prevailing party.

The Court perceives a serious problem with adopting a Plaintiff’s ad damnum as the exclusive measure of the “benchmark” against which any relief obtained is compared. This was not a suit for $100,000, per se, but an action seeking redress for the deprivation of constitutionally guaranteed rights. The nature or importance of an action does not vary in proportion to the amount of monetary relief requested. The ad damnum is only an estimate by the drafter of the complaint of the “relief to which he deems himself entitled.” Rule 8(a)(3) of the Federal Rules of Civil Procedure. The Plaintiff is not restricted or bound by the relief requested. See Rule 54(c); Steinmetz v. Bradbury Co., Inc., 618 F.2d 21 (8th Cir.1980); U.S. v. Metro Development Corp., 61 F.R.D. 83 (N.D.Ga.1973). The amount of monetary relief requested in a complaint is usually decided without benefit of precise calculations as to the damages the Plaintiff realistically expects to recover. For these reasons, the Court will not adopt what is often a casually arrived at ad damnum figure as the “benchmark” in its determination of whether Plaintiff is the prevailing party. Instead, the Court adopts, as its definition of the “precise factual/legal condition” at issue in this case, the alleged deprivation of Plaintiff’s constitutional rights by the Defendants. The Court concludes that this, rather than the amount prayed for in compensation for same, is the true matter put in controversy in this action.

With this benchmark properly focused, the Court believes the facts here establish the Plaintiff as the prevailing party. The Plaintiff has, through the instigation and prosecution of this action, brought the Defendants into settlement negotiations which produced results favorable to the Plaintiff. The Court finds significant the fact that, again, as a “quite practical matter” the $200 received by Plaintiff in satisfaction of his action constitutes an “actual conferral of [a] benefit” to the Plaintiff by any reasonable interpretation of that phrase. While $200 is not an insubstantial amount of money even in absolute terms, when it is considered in relation to the Plaintiff’s financial position at the time of the settlement, its magnified value to Plaintiff becomes apparent. Plaintiff, due to his incarceration in the state penitentiary, had an extremely limited access to cash and an equally limited ability to obtain compensable work. To one so situated, the receipt of $200 would certainly loom as a significant sum. That the relief obtained by Plaintiff was less than the amount originally prayed for is unimportant. It is recognized that “compromise is integral to settlement.” Young v. Kenley, 641 F.2d 192, 195 (4th Cir.1981). Plaintiffs recovery, while it is not the fruits of a complete victory, is significant enough to constitute “a vindication of rights obtained by a settlement.” Smith v. University of North Carolina, 632 F.2d 316, 346 (4th Cir.1980).

There can be no question that that part of the Bonnes test which requires the outcome be “one to which the plaintiff fee claimant’s efforts contributed in a significant way” is satisfied in this case. The Defendants certainly would not have paid Plaintiff $200 but for the fact that he filed and prosecuted this action against them. Cf., Bly v. McLeod, 605 F.2d 134 (4th Cir.1979) cert. denied 445 U.S. 928, 100 S.Ct. 1315, 63 L.Ed.2d 761 (1980).

For a criticism of this aspect of the Bonnes test see Justice Rehnquist’s dissent from the Supreme Court’s denial of certiorari in the Bonnes and Young cases. 455 U.S. 961, 102 S.Ct. 1476, 71 L.Ed.2d 681. Justice Rehnquist expressed disfavor with the Bonnes test because it “focuses only on the factual question of whether the lawsuit caused a change favorable to the plaintiff....” 455 U.S. at 963, 102 S.Ct. at 1477 (emphasis in original). Justice Rehnquist expressed a preference for the First Circuit's test set forth in Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978) which requires that the outcome achieved by the action have some basis in law:

“Even if plaintiffs can establish that their suit was causally related to the defendants’ actions which improve their condition, this is only half of their battle. The test they must pass is legal as well as factual. If it has been judicially determined that defendants’ conduct, however beneficial it may be to plaintiffs’ interests, is not required by law, then defendants must be held to have acted gratuitously and plaintiffs have not prevailed in a legal sense.”

581 F.2d at 281. The two tests are compared and contrasted in the district court’s second memorandum opinion in Young v. Kenley, 485 F.Supp. 365 (E.D.Va.1980) reversed 641 F.2d 192 (4th Cir.1981) cert. denied 455 U.S. 961, 102 S.Ct. 1476, 71 L.Ed.2d 681 (1982) (The district court’s first opinion, reported at 465 F.Supp. 1260 (E.D.Va.1979), was reversed and remanded for reconsideration in light of the then recently adopted Bonnes test, 614 F.2d 373 (4th Cir.1979)).

The Plaintiff’s recovery in this case meets both Circuits’ tests. The debate over which test best effectuates the goals of Section 1988 is only of academic interest here because, as already noted, it is beyond dispute that the results achieved by Plaintiff were causally related to his action as a matter of fact —the Defendants would not have voluntarily tendered $200 to Plaintiff but for the fact that he had a pending lawsuit against them. It is also clear that there is a sound legal basis for Plaintiff’s recovery of monetary damages as compensation for alleged violations of his civil rights. See 42 U.S.C. § 1983. In short, there is no question that the settlement payment was made to Plaintiff because of his pending lawsuit; the payment was not a gratuitous action by the Defendants.

The Defendants’ emphasis on the amount of the settlement in its argument against the award of fees is misplaced. The amount recovered by a plaintiff is not, by itself, determinative of the issue of who is the prevailing party. See e.g., Wheeler v. Durham City Board of Education, 88 F.R.D. 27, 32 (M.D.N.C.1980); Brown v. Boorstin, 471 F.Supp. 56, 57 (D.D.C.1978). The amount recovered is, however, relevant to the amount of the fee award. Id. That is, the “results obtained” by the Plaintiff is a specifically designated factor to be designated by the Court in setting the appropriate fee award. The amount of Plaintiff’s recovery is relevant in deciding the degree of Plaintiffs success (as it relates to the determination of the appropriate fee award); it is not dispositive of the question of whether the Plaintiff prevailed. Virginia Academy of Clinical Psychologists v. Blue Shield, 543 F.Supp. 126, 130 (E.D.Va.1982) (“The minimal relief ultimately required by circumstances in no way detracts from plaintiffs’ accomplishments in this litigation. plaintiffs ‘substantially prevailed’ and will be awarded fees and costs accordingly.”)

Applying the pragmatic test required by the Fourth Circuit, the Court cannot escape the conclusion that Plaintiff is the prevailing party. As noted above, the only factor militating against such a conclusion is the amount of the recovery. As has been discussed, this fact is relevant in determining the amount of the attorney fee award; not whether an award of fees should be made to the prevailing party. The Plaintiff’s action has been successful in not only recovering a monetary award for himself, but also in establishing by the prosecution, and ultimate settlement of this action, that a citizen’s constitutional rights cannot be violated without serious repercussions in the form of litigation and liability for monetary damages. In this manner, Plaintiff’s action has served to vindicate his rights and should serve as a deterrant to prevent others from taking lightly the constitutional rights of a prisoner. In this very real sense, the settlement achieved by Plaintiff establishes Plaintiff as the prevailing party in this case.

B. Discretion. “The discretion of the district court in deciding whether to award attorney’s fees to a prevailing party is narrowly limited.” Bonnes v. Long, 599 F.2d at 1318. Absent “special circumstances” which would render an award of fees unjust, a prevailing party “should ordinarily recover an attorney’s fee....” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401, 88 S.Ct. 964, 965, 19 L.Ed.2d 1263 (1968). In exercising the limited discretion afforded it in this matter, the Court perceives no special circumstances which would render unjust an award of attorney’s fees in this case. Quite to the contrary, an important reason for awarding fees in this case is that doing so is supported by “the basic rationale of Section 1988: that enforcement of civil rights legislation can best be achieved by encouraging the public to act as private attorneys general.” Bonnes v. Long, 599 F.2d at 1318. In his textural dissent from the denial of certiorari to the Fourth Circuit’s Bonnes and Young cases Justice Rehnquist traced the legislative purpose behind Section 1988:

“When it passed the Act, Congress was aware that ‘[t]he effective enforcement of Federal civil rights statutes depends largely on the efforts of private citizens,’ H.R.Rep. No. 94-1558, p. 1 (1976), and that ‘a vast majority of the victims of civil rights violations cannot afford legal counsel [and] are unable to present their cases to the courts.’ Ibid. Accordingly, the Act was passed to encourage the ‘vigorous enforcement of modern civil rights legislation,’ S.Rep. No. 94-1011, p. 4 (1976), by ‘ “private attorney[s] general” advancing the rights of the public at large, and not merely some narrow parochial interest.' 122 Cong.Rec. 35122 (1976) (remarks of Rep. Drinan, sponsor).”

455 U.S. at 967, 102 S.Ct. at 1479. See also Gates v. Collier, 616 F.2d 1268, 1273-75 (5th Cir.1980).

The above quoted portion of the legislative history of Section 1988 indicates that suits such as this one are an integral part of the enforcement scheme of the civil rights laws. Plaintiff, by bringing this action, and Petitioner by providing Plaintiff with legal representation, have served this Congressional purpose of Section 1988. Petitioner is entitled to compensation for his services performed while actively pursuing the enforcement of Plaintiff’s civil rights.

III. Waiver

The Defendants contend that Petitioner is barred from seeking an award of attorney’s fees because the settlement agreement specifically provided that each party was to bear his own costs and attorney’s fees. Petitioner concedes, as he must, that the settlement agreement does contain such a clause but argues that prior to executing the agreement he had notified defense counsel that he would not consider himself bound by the clause waiving his right to petition for attorney’s fees. Petitioner considered the inclusion of such a clause to be unethical. The correspondence between counsel discloses that Petitioner, as counsel for Plaintiff, informed defense counsel that he felt the clause in the agreement covering fees should not be included because it was hot discussed by negotiation and could lead to a conflict of interest; defense counsel felt equally strongly that the clause should be included. This presents to the Court the issue of whether a clause waiving a statutorily granted right to petition for attorney’s fees is enforceable. For the reasons discussed below, the Court concludes that such a clause violates public policy and is unenforceable.

In a prior opinion this Court addressed this issue and ruled as follows:

“The defendants stress that:
‘The plaintiff has ■ clearly waived any potential award of attorney fees in the two federal lawsuits by expressly releasing the defendants “... from any and all ... costs, [and] expenses ...” in the Release of All Claims signed by him on April 7, 1981. [Defendants’ Memorandum at 3, see nt. 2, supra ].’
In the hearing held on this matter Defendants testified that Plaintiff had in fact negotiated away his right to recover an attorney’s fee. Defendants urge that this is a ‘special circumstance’ justifying the denial of a claim for an attorney’s fee.
It is clear that the congressional purpose in providing attorney fees in civil rights cases was to eliminate financial barriers to the vindication of constitutional rights and to stimulate voluntary compliance with the law. S.Rep. No. 1011, 94th Cong., 2d Sess., reprinted in [1976] U.S.Code Cong. & Ad.News, p. 5908; H.R.Rep. No. 1558, 94th Cong., 2d Sess. (1976). Seattle School Dist. No. 1 v. State of Washington, 633 F.2d 1338, 1348 (9th Cir.1980). This Court must conclude that any negotiation concerning attorney fees during the settlement of the merits is against public policy. Such considerations are not interests which are meant to be resolved as a part of the merits of the action. Neither the client nor the attorney should have to weigh such considerations in determining whether an action should be settled. ‘The possibility of an adverse effect upon the exercise of free judgment by a lawyer on behalf of his client during litigation generally makes it undesirable for a lawyer ... to become financially interested in the outcome of the litigation____’ E.C. 5-7, A.B.A., Code of Professional Responsibility. Because a waiver of attorney fees is contrary to the congressional purpose favoring the award thereof and has the very real potential of running afoul of pertinent ethical considerations, this Court must decline to consider the proposed language of the settlement agreement as a special circumstance warranting against the award of an attorney’s fee in this action.”

McGraw v. McCoy, Civil Action No. 79-0004 and 80-0207, Memorandum Opinion and Order at pp. 4-5, entered July 25, 1982.

The danger of allowing defense counsel to infuse into the settlement negotiations a demand for a fee waiver by Plaintiffs counsel is easily illustrated. A Plaintiff, of course, has no interest in the amount of attorney’s fees his counsel will receive; indeed the Plaintiff has no interest in whether his counsel receives any fee. The practicalities of the economics of practicing law, however, do not permit a Plaintiff’s counsel to ignore the importance of the fee recovery. Payment for services rendered is necessary to the continued existence of any law practice. Plaintiff’s disinterest in a fee recovery stands in sharp contrast to the attorney’s understandable desire to be paid for his services. When confronted with a favorable settlement offer which is accompanied by a demand that counsel waive his right to petition for statutorily provided attorney’s fees, counsel is placed in an untenable position. By rejecting the offer he is placing his desire to recover a fee over his client’s interest in obtaining the favorable settlement. If counsel accepts the offer he is unfairly forced to forego compensation for his legal services. This dilemma was recognized by the Committee on Professional and Judicial Ethics of the Association of the Bar of New York City in its Opinion No. 80-94, rendered September 18, 1981:

“Frequently, plaintiffs’ counsel in civil rights litigation are employed by a public interest organization which does not accept fees from the client as a matter of policy and in any event, plaintiffs in such cases often have no resources to pay a fee. In such cases, waiver of the attorneys’ fees will not affect only the lawyers and their organizations, who depend entirely on the statute for their fee; the client who is not obligated or is unable to pay fees, has no stake in the statutory fee and is hence not concerned with its waiver. Yet, plaintiff’s counsel owes undivided loyalty to the client and is obligated to exercise his judgment in evaluating the settlement free from the influence of his or his organization’s interest in a fee. DR-5-101(A). Hence, it would seem that plaintiff’s counsel confronted by such a demand must ignore his or his organization’s interest in a fee and recommend waiver of the fee if the substantive terms of the settlement are desirable for the plaintiff. Defense counsel thus are in a uniquely favorable position when they condition settlement on the waiver of the statutory fee: They make a demand for a benefit which the plaintiff’s lawyer cannot resist as a matter of ethics and which the plaintiff will not resist due to lack of interest [footnotes omitted].”

The Third Circuit has also cautioned against the simultaneous negotiation of the substantive settlement and attorney’s fees:

“The respective interests of lawyer and client may also vary, depending on whether the fee comes from a recovered fund or directly from the defendant in satisfaction of a separate obligation.
******
When the statute provides that a fee is to be paid as a separate item, the conflict between client and attorney may not be as apparent, particularly in the event of settlement. It is often present nonetheless.”

Prandini v. National Tea Co., 557 F.2d 1015, 1020 (3rd Cir.1977). The court suggested “[a] reasonable solution ... is for trial courts to insist upon settlement of the damage aspect of the case separately from the award of statutorily authorized attorneys’ fees.” 557 F.2d at 1021. See also, Mendoza v. U.S., 623 F.2d 1338, 1352-1353 (9th Cir.1980) cert. denied 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981).

Because the demand by defense counsel that Petitioner waive his right to petition for an award of attorney’s fees served to create a conflict of interest between Petitioner and Plaintiff, as is inevitable whenever such a demand for a fee waiver is made, the Court concludes that such a demand cannot be enforced as a matter of public policy. Accordingly, the Court finds defense counsel’s demand for a fee waiver by Petitioner, and the language in the final settlement reflecting that each party is to bear his own costs and attorney’s fees, to be without force and effect.

IV. Determination of Amount of Fees

The Fourth Circuit has set forth twelve specific criteria to be considered in any case involving an award of attorney’s fees. Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir.1978) cert. denied 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978). In applying these factors, the Fourth Circuit has indicated that the trial courts should “begin with a figure based on the number of hours reasonably expended multiplied by a reasonable hourly rate and then explain any adjustment of these figures either up or down because of the other Johnson [v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974)] factors listed in Barber.” Anderson v. Morris, 658 F.2d 246, 249 (4th Cir.1981). Following the guidelines established by Barber and Anderson, the Court makes the following findings concerning a reasonable fee award in this case.

1. TIME AND LABOR EXPENDED. Petitioner has submitted a detailed itemization of the time he spent representing the Plaintiff in this action. After carefully scrutinizing Petitioner’s original itemization and the supplemental itemization setting forth an additional 8.37 hours spent in conferences and research, the Court finds each of these items to be reasonable and necessary to counsel’s preparation and representation of his client in this cause. Accordingly, the Court adopts by reference Petitioner’s itemization of the time spent on this case and finds the time reasonably expended by the Petitioner in this action to be 69 hours.

2. NOVELTY AND DIFFICULTY OF THE QUESTIONS RAISED. This case presented a factual question of whether the alleged constitutional deprivations occurred. No novel or difficult legal issues were raised by this litigation. The Court has treated this factor neutrally in determining the fee award.

3. SKILL REQUIRED TO PROPERLY PERFORM THE LEGAL SERVICES. The level of skill required to perform the legal services rendered in this action is the same as that required for effective representation in the average personal injury civil action. However, Petitioner’s task was made more difficult in this matter by the number of plaintiffs claiming to have been injured during the security shakedown and the practical problems arising from the fact that Petitioner’s client was incarcerated for the duration of this litigation. Despite these additional difficulties presented by the case, the Court does not deem it appropriate to increase the fee award to compensate for same.

4. ATTORNEY’S OPPORTUNITY COSTS IN PRESSING THE INSTANT LITIGATION. While this case did not require such a time-consuming and exhaustive pretrial preparation that would preclude the Petitioner from accepting other employment during the pendency of this action, the substantial time and energy expended on behalf of the Plaintiff herein certainly barred the Petitioner from accepting other remunerative employment. Petitioner’s itemization of time expended in this case reveals that most of counsel’s time was spent, as would be expected in a case of this nature, in discovery and research which could be scheduled at counsel’s convenience within the pretrial time-frame established by the Court. Because the “opportunity costs” of this action are properly characterized as being the same as in any other civil litigation, the Court has not increased or decreased the fee award under this factor.

5. CUSTOMARY FEE FOR LIKE WORK. At the time this case was litigated, compensation in this area ranged from $35 per hour for out-of-court services to in excess of $75 per hour for in-court services. The Petitioner had been a practicing attorney for approximately three years when the Court appointed him to represent Plaintiff in this action. The Court finds that the market rate for the type of legal services rendered by Petitioner, considering Petitioner’s experience was $40 per hour at the time the services were rendered by Petitioner.

Multiplying the above mentioned hourly rate ($40) by the number of hours reasonably expended in this case by Petitioner (69) the Court finds the lodestar figure for Petitioner’s fee award to be $2,760.

Petitioner suggests that the lodestar amount be increased by a “multiplier” of two, given the complexity and novelty of the legal and factual issues in this case. Although such a multiplier is used in the Second and Third Circuits, the Barber and Anderson cases, controlling here, do not provide for the use of a multiplier. In this Circuit, all adjustments to the lodestar figure are to be made pursuant to the enumerated twelve factors. See Virginia Academy of Clinical Psychologists v. Blue Shield, 543 F.Supp. 126, 151 (E.D.Va.1982).

6. WHETHER FEE IS FIXED OR CONTINGENT. The Petitioner accepted the appointment in this case knowing that he would not be compensated unless his client prevailed. Inasmuch as “courts have generally recognized that a contingent fee lawyer may have the right to expect a fee greater than if his fee were guaranteed” and inasmuch as the prospects of prevailing in this case were far from certain, the Court will increase the lodestar amount by 15% to allow for the fact that Petitioner was working on this case, as a Court-appointed attorney, without any guarantee of receiving payment for his services.

7. TIME LIMITATIONS IMPOSED BY THE CLIENT OR THE CIRCUMSTANCES. The Court has been made aware of no time limitations imposed in this case, other than those inherent in the scheduling of any civil matter. The Court makes no allowance in the lodestar figure pursuant to this factor.

8. AMOUNT INVOLVED AND THE RESULTS OBTAINED. The Court will not use this factor “as a basis on which to rehash the issue of who prevailed in this case.” Virginia Academy of Clinical Psychologists v. Blue Shield, 543 F.Supp. at 126. Considering this factor as relevant only to the degree of success, the Court finds that a substantial reduction in the lodestar amount is required to properly reflect the small monetary settlement and the fact that the case was settled without obtaining any type of permanent injunctive relief. The Court believes a reduction of 35% properly accounts for this factor and notes that an even greater reduction would be in order had this litigation not served to vindicate important constitutional rights.

9. EXPERIENCE, REPUTATION AND ABILITY OF ATTORNEY. The Court is satisfied with the manner in which Petitioner performed his duty as Court-appointed counsel in this case. Petitioner performed all his obligations in a timely and competent fashion which reflects favorably on his ability. Petitioner’s reputation is unblemished; the Court would not have appointed Petitioner had it been otherwise. Although Petitioner rates high under this factor, because the Court has already taken these matters into consideration in setting the hourly rate of $40, the Court will not increase or decrease the lodestar figure to reflect these admirable characteristics of Petitioner.

10. UNDESIRABILITY OF CASE. Along a continuum of cases ranging from those that are very readily accepted by counsel to those that could be termed “undesirable”, this case would most certainly be very near the end of the spectrum labeled “undesirable”. Representing a prisoner in a Section 1983 action against law enforcement officials is a difficult and unpleasant task due to the nature of the issues involved, the limited access provided to the client/prisoner and the unlikelihood of ultimate success. The Court deems it appropriate to reward Petitioner for accepting the appointment in this case as the Court is aware of the hardships often created by such an appointment. Accordingly, the Court increases the lodestar figure by 20% to compensate Petitioner for accepting the appointment and, hopefully, to encourage other counsel to accept such cases when asked to do so by the Court or a party seeking redress.

11. NATURE AND LENGTH OF THE PROFESSIONAL RELATIONSHIP WITH THE CLIENT. The tenure of the attorney-client relationship between Plaintiff and Petitioner is limited to the duration of this action. The Court has made no change in the lodestar figure under this factor.

12. AWARDS IN SIMILAR CASES. The Court has awarded counsel between $30 and $60 per hour for out-of-court services rendered in civil actions. The award of $40 per hour in this case approximates the median hourly rate set by the Court in other cases.

For the reasons discussed in addressing the above twelve criteria, the Court hereby awards Petitioner a fee of $2,760 to be assessed against the West Virginia Department of Public Safety. It is further ORDERED that the aforementioned amount shall be tendered to Petitioner within fifteen days of the date this Order is entered.

      . The security measures taken at, the penitentiary pursuant to the Executive Order have been made the subject of many complaints by inmates. See Parker v. Rockefeller, 521 F.Supp. 1013, n. at 1014 (N.D.W.Va.1981).

      . The Court in Gates attributed the judiciary’s expansive application of Section 1988 to the courts’ recognition of Congress’ "clear signals” that the Act should be liberally interpreted so as to achieve its desired remedial effect. 616 F.2d at 1275. This view is supported in the Act’s legislative history. Senate Report No. 94-1011, reprinted in [1976] U.S.Code, Cong. & Admin. News, p. 5908, 5910-5911. See also Smith v. La Cote Basque, 519 F.Supp. 663, 666 (S.D.N.Y.1981):
      "Recognizing the importance of private enforcement of civil rights legislation, courts have consistently held that the statutory provisions authorizing the awarding of attorneys’ fees as part of this private enforcement scheme should be broadly interpreted. [Citations omitted].”

      . Of course, Defendants’ argument recognizes only the inference that supports the Defendants’ position. The fact that the Defendants prevailed in the eleven companion cases yet decided to settle this case equally supports the contrary inference: That by settling only this case, the Defendants have admitted that this case was distinguishable in some manner from the other eleven cases and that this tacit recognition of their exposure to liability induced the Defendants to settle this action rather than risk an adverse jury verdict. For the reasons discussed infra at p. 222, this Court need not attempt to speculate on the parties’ subjective motivations for settling the underlying action in deciding whether or not Plaintiff is the prevailing party.

      . Chicano Police Officers' Association v. Stover, 624 F.2d 127 (10th Cir.1980); Coyote v. Roberts, 502 F.Supp. 1342 (D.R.I.1980); Huntley v. Community School Board of Brooklyn, 579 F.2d 738 (2d Cir.1978); Parker v. Matthews, 411 F.Supp. 1059 (D.D.C.1976).

      . "Nuisance settlements, of course, should not give rise to a ‘prevailing’ plaintiff.” Chicano Police Officers’ Association v. Stover, 624 F.2d at 131.
      "Certainly, attorneys’ fees should not be awarded in nuisance settlements.” Parker v. Matthews, 411 F.Supp. at 1064. See also Gram v. Bank of Louisiana, 691 F.2d 728 (5th Cir.1982). In Gram the plaintiff settled her Truth-in-Lending Act action against the Defendant for $150. The Fifth Circuit vacated the trial court’s order denying the plaintiffs request for attorney’s fees (Section 1640(a)(3) of the Truth-in-Lending Act provides for the award of attorney’s fees to a successful plaintiff). In remanding the case to the district court for further proceedings to determine the amount of the attorney’s fees to be awarded, the Fifth Circuit expressed the caveat that "nuisance settlements should not give rise to fee awards." 691 F.2d at 730.

      . At the risk of contradicting its statement in the text that it is not necessary to decide whether this action was terminated by a nuisance settlement, the discussion infra at p. 223 indicates clearly that the settlement agreement here was not a nuisance settlement.

      . This "benchmark” analysis was reaffirmed by the Fourth Circuit in DeMier v. Gondles, 676 F.2d 92 (4th Cir.1982).

      . This inquiry is covered by Factor No. 8 of the twelve factors to be considered by the Court in setting the fee award. See Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978) cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978). This factor is discussed infra at p. 229.

      . See p. 224, supra.

      . In discussing the legislative history of Section 1988, the court in Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 37 (2d Cir.1978) noted:
      "The remedy of attorneys’ fees has always been recognized as particularly appropriate in the civil rights area, and civil rights and attorneys’ fees have always been closely interwoven. In the civil rights area, Congress has instructed the courts to use the broadest and most effective remedies available to achieve the goals of our civil rights laws [citations omitted]."

      . See letters dated February 18, 1982, and February 22, 1982.

      . See e.g., Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3rd Cir.1973); City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974).

      . Virginia Academy of Clinical Psychologists v. Blue Shield, 543 F.Supp. at 148.

      . Although the Petitioner is entitled to be compensated for the time Petitioner spent in establishing his right to recover attorney’s fees, Bond v. Stanton, 630 F.2d 1231 (7th Cir.1980) cert. denied sub nom Blinzinger v. Bond, 454 U.S. 1063, 102 S.Ct. 614, 70 L.Ed.2d 601 (1981), Petitioner has not requested compensation for the time he spent establishing his right to recover a fee and, accordingly, no compensation for this time has been awarded.


author: BEER, District Judge.

text:
    UNITED STATES of America v. Joseph Robert PROVENZANO, et al.
    Crim. A. No. 84-103.
    United States District Court, E.D. Louisiana.
    Jan. 25, 1985.
    Virginia B. Bitzer, U.S. Dept, of Justice, New Orleans Strike Force, Louis Moore, Jr., Asst. U.S. Atty., New Orleans, La., for plaintiff.
    Provino Mosca, Patrick Fanning, William O’Hara and John-Michael Lawrence, G. Pat Hand, Ralph Capitelli, Edward J. Castaing, Daniel A. McGovern, John T. Mulvehill, Federal Public Defender’s Office, Virginia Laughlin Schlueter, Asst. Federal Public Defender, New Orleans, La., for defendants.
   BEER, District Judge.

Before the Court, by written motion and, in some instances, oral motion of counsel for various defendants, is a consideration of the question of detaining the defendants pending appeal.

All defendants before the Court in these proceedings (except defendant Provenzano, who has already commenced serving a term of imprisonment) are to self-surrender at the institution where they will serve their prison sentence by noon on February 6, 1985. Thus, time is a definite consideration in dealing with these motions.

The record in these proceedings will authenticate that defendants were ably and diligently represented and fairly tried in a trial that lasted approximately three weeks. At the conclusion of the evidence gathering portion of the trial, all defense counsel were accorded an extended period in which to make their closing arguments, after which the jury was charged and then began their deliberations. Those deliberations continued over a period of four days. The jury seriously and conscientiously went about their work. The verdict rendered by them speaks clearly to the point that they carefully considered each count as to each defendant. Indeed, it may now be noted that I had some concern about the government’s proof regarding one or two of the counts upon which the jury did, in fact, return not guilty verdicts. I did agree in all respects with their verdict as to each count involving each defendant.

Equally as diligent as the able defense counsel were the attorneys presenting the government’s case. Though certain decisions which the government’s attorneys made with respect to the method of presentation of their case may have been different than those which I might have made under the circumstances, I have no hesitation in concluding that the trial generated no substantial questions of law or fact which are likely to result in reversal on appeal. Nor were there any substantial questions of law or fact which will result in an order for a new trial.

Squarely before me, then, is the matter of determining whether I am empowered to grant defendants’ motions. I conclude that I am not. For, having made the factual and legal determination above referred to, I find the provisions of 18 U.S.C. § 3143 to be clear, unambiguous and straightforward.

The report of the Senate Judiciary Committee regarding the statute here involved includes a detailed discussion of the change brought about as a result of the Comprehensive Crime Control Act of 1984. See: S.Rep. No. 98-225, 98th Cong., 2nd Sess., reprinted in 1984 U.S.Code Cong. & Ad. News, Vol. 9A, p. 29.

The legislative history of the statute includes the following:

“It has been held that although denial of bail after conviction is frequently justified, the current statute incorporates a presumption in favor of bail after conviction. It is the (sic) presumption that the Committee wishes to eliminate in Section 3143.”

The report further states that:

“Once guilt of a crime has been established in a court of law, there is no reason to favor release pending ... appeal. The conviction, in which the defendant’s guilt of a crime has been established beyond a reasonable doubt, is presumably correct in law.
Second, release of a criminal defendant into the community after conviction may undermine the deterrent effect of the criminal law, especially in those situations where an appeal of the conviction may drag on for many months or even years.” Id.

District courts similarly confronted seem to have split on whether they will or will not follow what I perceive to be a clear, unequivocal mandate from the Congress. For example, a memorandum opinion of Honorable Susan Getzendanner, United States District Judge for the Northern District of Illinois, reached an opposite result in United States of America v. Cirrincione, et al, 600 F.Supp. 1436 (N.D.Ill., 1985).

Judge Getzendanner reasons:

“The apparent purposes of the Act — to eliminate dilatory appeals and to help deter crime — are laudatory ones, but may not be used to enhance punishment of those who committed unlawful acts in possible reliance on previous standards.” At 1445.

I am in disagreement with this rationale and with the conclusion that the congressional mandate embodied in the Comprehensive Crime Control Act of 1984 is being “used to enhance punishment.” Here there is no enhancement of punishment. Congress has simply spoken clearly to the point at issue. They have revised the manner in which convicted defendants will be dealt with after conviction, and their mandate is to be followed on the basis of its fair, reasonable and sensible construction compatible with the apparent object and plain intention as expressed therein.

There is no constitutional guarantee of bail pending appeal. See United States v. Baca, 444 F.2d 1292 (10th Cir.), cert. denied, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971). Furthermore, Judge Getzendanner, apparently acknowledging this, has observed:

“To the extent that the post-conviction bail provision of the new Act is regulatory and not punitive, it necessarily falls outside the prohibitions of the ex post
facto clause: ____”

However, she determines that:

“... Congress must have concluded that a sentence which commences immediately upon conviction is somehow more severe than a sentence which commences only after appeal.” At 1443.

I believe this to be an inaccurate observation. Congress has done no more (and no less) than to conclude, in their legislative wisdom, that judicial officers shall order a person who has been found guilty of an offense and sentenced to a term of imprisonment and who has filed an appeal (or a petition for a writ of certiorari) be detained unless the appeal raises a substantial question of law or fact likely to result in reversal or an order for a new trial. Having here made the determination that such is not here the case, defendants’ motions for bail pending appeal must be denied.

      . I believe this word was intended to be "this” instead of “the.”


author: LEIGHTON, District Judge.

text:
    NATIONAL METALCRAFTERS, A DIVISION OF KEYSTONE CONSOLIDATED INDUSTRIES, a Delaware corporation, Plaintiff-Counterdefendant, v. Donald J. McNEIL, Superintendent, Wage Claims Division, Illinois Department of Labor, Defendant, and Betty Johnson, et al., Intervenors-Defendants-Counterplaintiffs.
    No. 84 C 2190.
    United States District Court, N.D. Illinois, E.D.
    Jan. 29, 1985.
    See also, D.C., 103 F.R.D. 536.

      Philip Y. Carter, Mark A. Casciari, Robert C. Long, J. Stephen Poor, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for plaintiff-counterdefendant.
    Irving M. Friedman, Ann C. Hodges, Stanley Eisenstein, Katz, Friedman, Schur & Eagle, Chicago, Ill., for defendant and intervenors-defendants-counterplaintiffs.
    Richard J. Puchalski, Sp. Asst. Atty. Gen., Chicago, Ill., for defendant.
   Memorandum

LEIGHTON, District Judge.

This is a lawsuit seeking to enjoin the Illinois Department of Labor from commencing proceedings to enforce a determination made against plaintiff pursuant to state law. Specifically, the Department, through defendant McNeil, found that plaintiff violated Illinois law by willfully refusing to pay claimants (intervenors here) vacation pay due under collective bargaining agreements.

The crux of plaintiffs cause of action is that Illinois law, as it relates to the vacation pay sought by intervenors, is pre-empted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., and by the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. According to plaintiff, therefore, state court action or intervention to enforce the Department’s demand for payment is improper. Defendant and intervenors, however, contend that federal pre-emption is inapplicable to what are essentially contract claims under collective bargaining agreements. In their view, a state court can fully adjudicate these claims.

The cause is before the court on the motions of plaintiff, defendant, and intervenors, pursuant to Fed.R.Civ.P. 56, for summary judgment on plaintiff’s complaint. The parties do not dispute any material facts, and each moves for judgment as a matter of law, based on their pre-emption positions. Oral and written presentations having been submitted to the court, the only issue to be resolved is whether the Department’s exercise of jurisdiction conflicts with any federal statute, specifically, whether it is pre-empted by either ERISA or the NLRA. That issue arises out of the following facts.

I

Plaintiff, National Metalcrafters, a division of Keystone Consolidated Industries, a Delaware corporation with its principal place of business in Dallas, Texas, operates manufacturing facilities in Rockford, Illinois. Employees at plaintiff’s Rockford plant traditionally have been represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its local Union No. 449 (the “Union”). Over the years the company and the Union entered into a number of consecutive collective bargaining agreements covering the employment terms of Union employees. The most recent agreement began on April 14, 1980, and expired on April 16, 1983. Section 6.1 of the agreement, entitled “Amount of Vacation & Vacation Pay,” obligated the company to pay vacation benefits to Union employees based on length of service with the company.

Defendant Donald J. McNeil is Superintendent of the Wage Claims Division of the Illinois Department of Labor. He administers the provisions of the Illinois Wage Payment & Collection Act, Ill.Rev.Stat., ch. 48 § 39m-l, m-11 (the “Act”), a statute enacted to ensure that employers pay employees what is due under the terms of collective bargaining agreements. An employer who refuses to pay wages or final compensation earned under a Union contract violates the Act.

Prior to expiration of the 1980 bargaining agreement, plaintiff and the Union engaged in negotiations for a new agreement. As part of the new contract, plaintiff proposed a reduction in vacation benefits, the stated reason being to equalize Union employees’ and salaried employees’ vacation benefits. Plaintiff and the Union reached a bargaining impasse and when the 1980 agreement expired on April 16, 1983, the Union began a strike against the company which continues to the present day.

In May, 1983, the company unilaterally implemented the vacation benefits reduction plan, and in July, 1983, paid vacation benefits based'on the new plan rather than under the 1980 agreement. Subsequently, the Union filed an unfair labor practice charge with the National Labor Relations Board (NLRB) alleging that the company had violated the NLRA by, among other things, not paying vacation benefits as embodied in the terms of the 1980 agreement. At about the same time, 250 Union employees brought claims before the Wage Claims Division of the Illinois Department of Labor, pursuant to the Act, for vacation wages earned and not paid by the company.

Following briefing and oral argument, defendant McNeil found that the company had withheld vacation pay from the employees in violation of the Act. He ordered it to pay claimants, within 15 days, the difference between the amounts of vacation pay actually given them in July, 1983, and the amounts they would have received had the benefits been calculated in accordance with the rates set forth in the 1980 contract between the company and the Union. In reaching his decision, defendant rejected plaintiffs arguments that the Act was pre-empted by ERISA and the NLRA, and found that he had jurisdiction over the claims. In defendant’s view, ERISA did not pre-empt state intervention because the vacation provisions of the Union contract under which claimants worked did not constitute an employee benefit plan within ER-ISA. “Indeed,” defendant stated, “it does not appear that the company believed its vacation obligations were governed by ER-ISA, at least until it began preparing its defense to these claims ... workers never have received ERISA-required reports.” (Memorandum in Support of Demand for Payment, p. 8). Defendant also concluded that the NLRA pre-emption argument was without merit, because the case did not turn on an interpretation of federal labor law, but rather, on the provisions of the 1980 contract. Enforcement therefore would not “usurp the NLRB’s authority ... interfere with the collective bargaining process or dictate the outcome of ongoing negotiations.” Id. at p. 7. In summary, defendant found that the company

[h]as wilfully refused to pay (vacation pay) as provided in the Wage Payment and Collection Act, and has falsely denied the validity of the instant claims, with intent to secure for itself an underpayment of its indebtedness to the claimants. A demand for payment will issue and the Department will take appropriate legal action to enforce said demand, absent voluntary compliance by the employer.

The company did not comply with defendant’s Order. Instead, it commenced this action seeking declaratory and injunctive relief to the effect that Illinois law, as it applied to the vacation pay claims, is preempted by ERISA and the NLRA. After the action was commenced, Betty Johnson, who was a claimant before defendant McNeil, intervened and filed counterclaims against plaintiff, on behalf of herself and all others similarly situated.

II

Congress enacted ERISA to protect working men and women from abuses in the administration and investment of private retirement plans and employee welfare plans. Donovan v. Dillingham, 688 F.2d 1367, 1370 (11th Cir.1982). ERISA established certain minimum standards for the vesting of benefits, funding of benefits, carrying out fiduciary responsibilities, reporting to the government, and making disclosures to participants, id., so that “the private pension promise (would) become real, rather than illusory.” H.R.Rep. No. 93-533, 93d Cong.2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 4648.

Title I of ERISA applies to any employee benefit plan if it is established or maintained—

1) by any employer engaged in com- . merce or in any industry or activity affecting commerce; or
2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or
3) by both.

29 U.S.C. § 1003(a).

An employee benefit plan can be either an “employee welfare benefit plan” or an “employee pension benefit plan” or a plan which is both. 29 U.S.C. § 1002(3). An employee welfare benefit plan is described in the statute as

[a]ny plan, fund or program which was ... established or maintained by an employer ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries ... A) ... benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits ...

29 U.S.C. § 1002(1).

ERISA contemplates that such plans shall be established pursuant to a written instrument providing for fiduciaries, and that the assets of the plan shall be held in trust by trustees to manage and control the assets of the plan. 29 U.S.C. §§ 1102, 1103.

Not all employee plans can meet these statutorily specific parameters. See 29 U.S.C. § 1143(a)(1) (“there are types of plans not subject to this Act”). Additionally, the Secretary of Labor has enacted 29 C.F.R. 2510.3-1 which exempts certain practices from ERISA coverage. These include:

Payment of compensation, out of the employer’s general assets, on account of periods of time during which the employee, although physically and mentally able to perform his or her duties and not absent for medical reasons (such as pregnancy, a physical examination or psychiatric treatment) performs no duties; for example—
i) Payment of compensation while an employee is on vacation or absent on a holiday, including payment of premiums to induce employees to take vacations at a time favorable to the employer for business reasons.

29 C.F.R. 2510.3-l(b)(3)(i).

ERISA provides a broad pre-emption section. 29 U.S.C. § 1144(a) states that

[t]he provisions of this title ... shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan described in Section 4(a) ...

ERISA, however, does not pre-empt statutes regulating practices which either do not qualify as, or are excepted from the definition of, ERISA benefit plans, and therefore are not covered by the statute. Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 2903, 77 L.Ed.2d 490 (1983).

Plaintiff of course argues that its vacation pay plan was established pursuant to ERISA, and that Illinois law is pre-empted insofar as it relates to the plan. This court disagrees. The facts of this case simply do not substantiate plaintiff’s claims. Here the court is pointed to no established fund, no beneficiaries and no fiduciaries. Plaintiff has submitted no evidence of a summary plan description, no annual reports, no trust agreement, which would lead the court to conclude that this was an ERISA fund established or maintained by the employer for the benefit of its employees. As noted by defendant McNeil, the ERISA pre-emption argument only seems to have come into play when plaintiff began preparing its defense to court actions instituted against it.

According to plaintiff, however, the “plain meaning” of the statute mandates a finding that its plan is within ERISA. While it is true that ERISA encompasses “vacation benefits” under the rubric of employee welfare plan, 29 U.S.C. § 1002(1), it is equally true that such benefits must meet the other ERISA requirements that the assets of the plan be funded in trust. The court does not dispute that in a proper case vacation benefits can fall within ERISA coverage, and be subject to federal pre-emption. See e.g., Baker v. Caravan Moving Corporation, 561 F.Supp. 337 (N.D.Ill.1983). But this is not that case.

Plaintiff persists, however, and cites California Hospital Association v. Henning, 569 F.Supp. 1544 (C.D.Cal.1983) as support for its view that all vacation plans and programs are covered by ERISA, “irrespective of whether such arrangement is funded, trusteed, or embodied in a writing.” Id. at 1546. Henning is a lone voice however, and it is in direct contravention of the statute. 29 U.S.C. §§ 1102, 1103. This court is of the opinion that Henning was wrongly decided, and that the better view is expressed in the interpretation of ERISA found in Taggart Corporation v. Life and Health Benefits Administration, Inc., 617 F.2d 1208 (5th Cir.1980), cert. denied 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981), where the court held that ERISA does not apply to a program with no assets, no fund, and no trust to be protected by ERISA.

Furthermore, Henning directly contradicts the Secretary’s regulation exempting vacation benefits paid out of an employer’s general assets from ERISA coverage. The administrative interpretation of ERISA by those entrusted with its enforcement is entitled to great weight. Abella v. W.A. Foote Memorial Hospital, Inc., 740 F.2d 4 (6th Cir.1984).

As this court stated to counsel at oral argument, the matter appears clear that the Act is not pre-empted by ERISA. ERISA has nothing to do with how collective bargaining agreements are administered or enforced. At issue here is whether a state agency can order an employer to pay wages earned under a collective bargaining agreement. That is a far cry from the purpose for which Congress enacted ERISA.

Even assuming arguendo, that plaintiff’s vacation plan did fall within ERISA’s provisions, the court doubts that plaintiff has standing to bring this action under ERISA. See 29 U.S.C. § 1132(e)(1) (a civil action may only be brought by “the Secretary, or by a participant, beneficiary or fiduciary”). Also see Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Nothing in the evidence or oral presentations made to this court indicates that plaintiff employer is either a participant, beneficiary, or fiduciary, and thus, entitled to bring an ERISA action.

A final factor in rejecting the ERISA pre-emption argument is that the Illinois law in question provides for criminal penalties. It has been held that any Act which sanctions criminal prosecution for failure to make certain wage payments is not pre-empted by ERISA. See 29 U.S.C. § 1144(b)(4); Sasso v. Vachris, 116 Misc.2d 797, 456 N.Y.S.2d 629 (Sup.1982). For the foregoing reasons, therefore, the court concludes that plaintiff’s claim of ERISA preemption is without merit.

III

The court also rejects plaintiff’s alternative argument of NLRA pre-emption. Not every state law dealing with terms and conditions of employment comes within the sweep of the federal labor laws. San Diego Building Trades v. Garmon, 359 U.S. 236, 243-44, 79 S.Ct. 773, 778-79, 3 L.Ed.2d 775 (1959). To determine if state regulation is pre-empted by federal labor laws, a court must make a balanced inquiry into such factors as the nature of the federal and state interests and the potential for interference with federal regulation. State interests that are “a merely peripheral concern” of federal labor law override the federal interest. Id. Alternatively, state regulation may escape pre-emption by being directed at state “interests so deeply rooted in local feeling and responsibility” that, in the absence of compelling congressional direction, (a court) could not infer that Congress had deprived the states of the power to act. Id. at 243, 244, 79 S.Ct. at 778, 779. See also, Gould Inc. v. Wisconsin Department of Industry, Labor and Human Relations, et al., 750 F.2d 608, at 610-611 (7th Cir.1984).

The Illinois Act is one that provides basic protections for the working citizens of Illinois. In balancing the interests at play here, it is plain to this court that the Department seeks to enforce rights which are “a merely peripheral concern” of federal law, and which implicate “interests so deeply rooted in local feeling and responsibility” that state action in no way interferes with the NLRB’s authority.

IV

Summary judgment is appropriate in actions where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Cedillo v. International Asso ciation of Bridge & Structural Iron Workers, 603 F.2d 7, 10 (7th Cir.1979). The parties agree that there is no issue of material fact in dispute, and the court has carefully reviewed relevant law relating to pre-emption. The law is clear that the Illinois Wage Payment & Collection Act is not pre-empted by ERISA, or the NLRA, and the court concludes that defendant and intervenors are entitled to judgment as a matter of law. Accordingly, defendant’s and intervenors’ motions for summary judgment are granted, and judgment is entered in their favor; plaintiff’s motion for summary judgment is denied.

So ordered.

      . In March 1984, the Union withdrew, without prejudice, its charge on the vacations benefit issue.


author: PETTINE, Senior District Judge.

text:
    MILES UN-LTD., INC. v. The TOWN OF NEW SHOREHAM, et al.
    Civ. A. No. 84-0100 P.
    United States District Court, D. Rhode Island.
    Jan. 30, 1985.
    Max Wistow, Providence, R.I., for plaintiff.
    William J. Gallogly, Westerly, R.I., John Dolan, Deming Sherman, Providence, R.I., for defendants.
   MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

The plaintiff in the above named action, Miles Un-Ltd., Inc., now moves this Court to reconsider a previous order, issued on September 10, 1984, dismissing its federal district court complaint. The plaintiff had originally requested relief pursuant to federal and state antitrust laws, 15 U.S.C. §§ 1, 2, 15, and 26, and R.I.Gen.Laws § 6-31-1; the First, Fifth, and Fourteenth Amendments to the United States Constitution; and 42 U.S.C. § 1983 and § 1988. I dismissed all of these claims in my prior order on the grounds that 1) the § 1983 claims were barred under Rhode Island principles of res judicata by a previous state court decision rendered in Leone v. Town of North Shoreham; 2) the plaintiff had failed to state a claim for which relief could be granted under § 1 and § 2 of the Sherman Antitrust Act; and 3) under the circumstances, the Court should not exercise pendant jurisdiction over the state claims. Plaintiff now seeks reconsideration of these rulings.

This Court dismissed the plaintiffs § 1988 claims on the theory that the plaintiff could have raised them in Leone but failed to do so. Under the law of the state of Rhode Island, as enunciated to the case of Providence Teacher’s Union, Local 958 v. McGovern, 113 R.I. 168, 172 (1974), “[r]es judicata bars the relitigation of all issues that were tried or might have been tried in the original suit.”' I therefore concluded as a matter of law that the plaintiff could have raised its § 1983 claims in state court, and were thus barred from pressing those claims in a subsequent federal court action.

The plaintiff now contends that a recently decided Rhode Island case, Estate of Bassett v. Stone, 458 A.2d 1078 (R.I.1983), directs a reversal of my original ruling. The court in Bassett specifically identified four criteria that must be met before res judicata effect will be accorded to a prior judgment. These criteria are: “(1) identity of parties, (2) identity of issues, (3) identity of claims for relief, and (4) finality of judgment.” Id. at 1080. The plaintiff argues that applying the third factor listed in Bassett, it is not barred from bringing the instant action because in the prior state court proceeding, it sought purely injunctive relief, while in this action, it seeks damages.

I do not believe that by including the language “identity of claims for relief” among the prerequisites for invocation of res judicata, the Rhode Island Supreme Court intended to allow claims like the one the plaintiff now presses. The doctrine of res judicata, as a vehicle to eliminate repetitive litigation, is one of substance, and not of form. Perez v. Pawtucket Redevelopment Agency, 111 R.I. 327, 302 A.2d 785, 791 (1973). This language, therefore, must not be read literally, but must be interpreted with reference to other Rhode Island cases on this issue as well as the language in the Bassett opinion itself.

Rhode Island case law concerning res judicata clearly demonstrates that the requirement of “identity of claims for relief” is not tantamount to identity of the remedy requested. If it were otherwise, a party could frustrate the very purpose of bar and merger by merely requesting a different remedy in two separate proceedings on the very same cause of action. Under Rhode Island law, therefore, claims for relief are typically considered identical if they arise out of the same transaction or occurrence. Cf. Zalobowski v. New England Teamsters and Trucking Industry Pension Fund, 122 R.I. 609, 410 A.2d 436 (1980) (noting installment contracts as an exception, which involve separate claims for relief). The United States District Court for the District of Rhode Island endorsed this legal construction in its opinion in Gonsalves v. Alpine Country Club, 563 F.Supp. 1283 (D.R.I.1983), where it noted that the entry of a final judgment following an adjudication on the merits “ ‘extinguishes ... all fights of a plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the complaint arose.’ ” Id. at 1285-86, quoting Isaac v. Schwartz, 706 F.2d 15, 16 (1st Cir.1983).

Other Rhode Island cases illustrate that the courts have not restricted the doctrine of res judicata to cases that request an identical remedy. In Silva v. Silva, 122 R.I. 178, 404 A.2d 829 (1979), the Supreme Court held that a decision by the family court denying the petitioner’s motion to hold her husband in contempt for failure to pay child support precluded a subsequent action for execution to collect such funds. Id. at 832. Silva involved the invocation of two entirely different remedies for the collection of child support. The critical inquiry in that case, however, was whether the plaintiff, in being permitted to pursue the second suit, would be given two bites of the apple — that is, would she be given the opportunity to litigate in a second proceeding the same issues that were decided in the contempt action. Id. Were I to grant the motion in the instant case, the plaintiff also would be afforded a second bite at the apple.

Even if the reference in Bassett to “identity of claims for relief” could be construed to require an identity of remedy between the two actions, I conclude that the language of Bassett itself mandates that the identity be between remedies which might have been requested rather than between those which actually were. It is true that Bassett delineates, as two of the prerequisites for res judicata, both identity of claims for relief and identity of issues. Bassett, 458 A.2d at 1080. But Bassett also advances the general principle of res judicata espoused in Providence Teacher’s Union, supra — that the doctrine applies not only to issues that were actually litigated, but also to those which might have been. Id. To harmonize these two propositions, I must conclude that in demanding identity of issues, the court was requiring that the same issues could have been raised in the two pertinent actions and not that they actually were raised. Considering the policy behind the doctrine of res judicata that I have already mentioned, I find that the same construction must logically be applied to Bassett’s criterion of “identity of claims for relief”.

As to plaintiffs claims under § 1 and § 2 of the Sherman Antitrust Act, I find that they have failed to offer additional law or facts sufficient to persuade me that my original order was in error.

For the foregoing reasons, Plaintiffs motion for reconsideration of my September 10, 1984 order is DENIED.


author: FOREMAN, Chief Judge:

text:
    DISTRICT 12, UNITED MINE WORKERS OF AMERICA, et al., Plaintiffs, v. PEABODY COAL COMPANY, Defendant.
    Civ. No. 83-4019.
    United States District Court, S.D. Illinois, Benton Division.
    Feb. 1, 1985.

      Barbara C. Gumbel, Edwardsville, Ill., for plaintiffs.
    Harold I. Elbert and Charles S. Elbert, Patrick M. Sanders, St. Louis, Mo., John M. Ferguson, Belleville, Ill., for defendant.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

This ease is now before the Court on the cross-motions for summary judgment (Document No. 7 and 16). Plaintiffs brought this action pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to enforce a prior arbitration award dated October 30, 1974, rendered by arbitrator Fisher, which held that Peabody Coal Company (Peabody) did not violate the collective bargaining agreement by abolishing the exclusively first shift job of belt repairmen but that Peabody did not have the right to assign the grievants (former first shift belt repairmen) to a rotating shift against their wills.

The plaintiffs herein allege that Peabody, pursuant to a reduction and realignment of its work force has violated the 1974 award by assigning them to rotating shifts every two weeks.

The defendant argues that whether or not the 1974 award is binding in this context is a matter for arbitration and not for this Court to decide. On the other hand, the plaintiffs argue that since the present action concerns matters identical both as to parties and issues as the 1974 award, this Court should enforce the 1974 award without requiring the plaintiffs to again submit to arbitration.

Summary judgment is appropriate only where the record shows 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. The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). The Court must view the evidence, and the reasonable inferences to be drawn therefrom, in the light most favorable to the party opposing summary judgment. Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yorger v. Pittsburg Corning Corp., 733 F.2d 1215 (7th Cir.1984).

Where the moving party has met its initial burden and the opposing party asserts the existence of a question of fact, the Seventh Circuit has identified two considerations to be used in determining whether the non-moving party has established that there is a genuine issue as to that fact.

To create a question of fact, an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is a genuine issue for trial____ A party may not rest on mere allegations or denials of his pleadings; similarly, a bare contention that an issue of fact exists is insufficient to raise a factual issue.

Posey v. Skyline Corp. 702 F.2d 102, 105 (7th Cir.), cert. denied, _ U.S. _, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Furthermore, the disputed fact must be material, that is, it must be outcome-determinative under the applicable law. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied, _ U.S. _, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

The fact that both parties argue for summary judgment does not indicate that there is no genuine issues of material fact. Wright, Miller and Kane, Federal Practice and Procedure: Civil 21 § 2720. The Court must rule on each motion separately, determining as to each motion whether a judgment may be entered in accordance with the above principles. Id.

Applying these principles to the case at hand, the Court finds that the defendant’s motion for summary judgment should be granted and that the plaintiff’s motion for summary judgment should be denied.

Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, authorizes a union as party to, and employees as beneficiaries of, a collective bargaining agreement to bring an action in federal court to enforce an arbitration award made pursuant to the provisions of the collective bargaining agreement. See United Steel Workers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). However, courts have refused to enforce blindly prior arbitration awards when an allegation has been made that the facts surrounding the present grievance are different from those covered under the prior award. Where there exists a clear difference between the current facts and those giving rise to the prior arbitration award, the courts have uniformly refused to enforce the prior award, directing the parties to submit the matter to arbitration.

Currently, there is a split in the circuits as to just how much factual identity is required before a court will enforce the prior award. The Fifth Circuit has held that if there exists “material factual identity” the prior award must be enforced. Oil, Chemical and Atomic Workers International Union v. Ethyl Corporation, 644 F.2d 1044 (5th Cir.1981). The Ethyl court added that “material factual identity” exists when “there is no difference between the current facts and those giving rise to the prior arbitration award which, when analyzed in light of the mandates of the collective bargaining agreement, would justify an arbitrator’s reaching a different conclusion in each of the two cases.” 644 F.2d at 1055.

On the other hand, the Third Circuit has held that in order to enforce the prior award the district court:

must be able to say “with positive assurance” that the award or settlement was intended to cover the dispute. If the Court has any doubt, the parties should be returned to their grievance procedure and arbitration, for it is an arbitrator, and not the Court, who is to decide whether the same issue has already been resolved in an earlier proceeding.

United Mine Workers, District 5 v. Consolidated Coal Co., 666 F.2d 806, 811 (3d Cir.1981) (footnote and citation omitted).

Other circuits have gone even further than Consolidated Coal. The Fourth Circuit has stated that “[wjhether [a prior award] can be given an effect akin to res judicata or stare decisis with regard to future disputes ... neither the district court nor this Court should decide. If the parties do not agree, that issue itself is a proper subject for arbitration.” Little Six Corp. v. United Mine Workers of America Local 8332, 701 F.2d 26, 29 (4th Cir.1983) (ironically quoting the pre-Ethyl Fifth Circuit case of New Orleans S.S. Ass’n. v. General Longshore Workers, 626 F.2d 455, 468 (5th Cir.1980), aff'd sub nom. Jacksonville Bulk Terminal, Inc. v. Longshoremen’s Ass’n., 457 U.S. 702, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982)). The First and Eleventh Circuits have endorsed this position. See Boston Shipping Ass’n v. Int’l Longshoremen’s Ass’n, 659 F.2d 1 (1st Cir.1981); Intern. Broth. of Elec. Workers v. United Tel. Co., 738 F.2d 1564 (11th Cir.1984).

Obviously, the plaintiffs urge this Court to adopt the Fifth Circuit approach and hold that there exists material factual identity between the facts giving rise to 1974 award and the current facts to justify enforcing the 1974 award. The Court refuses to do so. The Court agrees with the Third Circuit that unless the Court can say with positive assurance that the prior award was intended to cover this dispute, it must return the matter to arbitration. See Consolidated Coal, 666 F.2d at 811. By the same token, the Court does not deem it necessary to go as far as the First, Fourth, and Eleventh Circuits in saying that mere disagreement between the parties as to the effect of the prior award justifies the submission to arbitration. Clearly, if the parties agreed as to the effect there would be no need for an enforcement proceeding such as this one.

With regard to the facts at hand, the Court cannot say with positive assurance that the 1974 arbitration award was intended to cover the present dispute. Almost nine years had passed from the time of the 1974 award to the filing of this lawsuit. In that period three new collective bargaining agreements were negotiated. The agreement in effect when the 1974 award was rendered never mentioned a realignment of the work force procedure. The 1981 agreement contains a detailed provision on realignment of the work force. Further, in other arbitration matters, the arbitrator Sabella refused to follow the 1974 Fisher award because unlike the 1971 agreement under which the Fisher award was decided, the 1981 agreement has detailed provisions for realignment. All of these facts are undisputed by the plaintiffs. Given these facts, the Court cannot say with positive assurance that the 1974 award was intended to cover the present dispute, nor can the Court say that the present facts are materially identical to the facts addressed in the 1974 award so as to meet the requirements of the Fifth Circuit’s test had this Court adopted it.

Accordingly, finding that there exists no issue of material fact and that the defendant is entitled to judgment as a matter of law, the Court GRANTS the defendant’s Motion for Summary Judgment (Document No. 7) and DENIES the plaintiffs' Motion for Summary Judgment (Document No. 16). The Court has duly considered all other arguments and finds them to be without merit. The Clerk is ordered to enter judgment in favor of the defendant and against the plaintiffs.

IT IS SO ORDERED.