source: Caselaw Access Project

author: CRABB, Chief Judge.

license: Public Domain

text:
    Ruth BOLES and Barbara Oswald, on their own behalf, and on behalf of all others similarly situated, Plaintiffs, v. Anthony EARL, Governor of the State of Wisconsin, and Linda Reivitz, Secretary of the Department of Health and Social Services, Defendants.
    No. 84-C-771-C.
    United States District Court, W.D. Wisconsin.
    Jan. 24, 1985.

      A. John Wabaunsee, Western Wisconsin Legal Services, LaCrosse, Wis., for plaintiffs.
    Donald P, Johns, Asst. Atty. Gen., Madison, Wis., for defendants.
   ORDER

CRABB, Chief Judge.

This is a civil action in which plaintiffs seek declaratory and injunctive relief for defendants’ allegedly unlawful administration of the Wisconsin Low Income Energy Assistance Program (LIEAP), established pursuant to the Low-Income Home Energy Assistance Act of 1981, 42 U.S.C. §§ 8621-8629. Plaintiffs Boles and Oswald, who receive federal rent subsidies under the Section 8 Existing Housing Program, 42 U.S.C. § 1437f, and Section 4 New Housing Program, 42 U.S.C. § 1437b, respectively, challenge defendants’ complete exclusion of residents of subsidized housing from LIEAP in 1983-84, and delays in eligibility and possible partial exclusion for 1984-85. Plaintiffs seek to have this action certified as a class action and seek a preliminary injunction concerning the administration of LIEAP during the 1984-85 heating season.

From the uncontroverted allegations of the complaint, and the affidavits and depositions submitted by the parties, and for the sole purpose of deciding these motions, I find that there is no genuine issue as to the following material facts.

FACTS

Plaintiff Ruth Boles rents a privately owned residence in Whitehall, Wisconsin. Her rent is subsidized by the Trempealeau County Housing Authority under the Federal Housing Authority’s Section 8 Existing Housing Program. 42 U.S.C. § 1437f; 24 C.F.R. Part 882. Included in her rent subsidy is an allowance for utility costs. The effect of this allowance is to increase the amount of the federal rent subsidy for her apartment. Plaintiff Boles pays for fuel oil to heat her house and also pays for her own electricity. In December, 1983, plaintiff Boles contacted the Trempealeau County Department of Social Services for an application for LIEAP benefits. Her application was denied on the grounds that it was state policy not to provide LIEAP payments to residents of federally subsidized housing, or to persons who received subsidies for their rent.

Plaintiff Barbara Oswald resides in the Kilbourn Apartments in Tomah, Wisconsin. The Kilbourn Apartments were constructed with a loan from the Farmer’s Home Administration (FmHA) for low income rural rental housing. 42 U.S.C. § 1486. Plaintiff Oswald receives a rent subsidy from the Federal Housing Administration under the Section 4 New Housing Program, 42 U.S.C. § 1437b; 24 C.F.R. Part 880. Her apartment is heated by electricity. Included in her rent subsidy is an allowance for utility costs. The utility allowance reduces plaintiff Oswald’s rent, but she is responsible for her electric bill. In the fall of 1983, plaintiff Oswald contacted the Monroe County Department of Social Services concerning an application for low income energy assistance. She was told that she was not eligible.

Plaintiffs Boles and Oswald receive Aid to Families with Dependent Children for themselves and their minor children residing in their home. Both plaintiff Boles’ and plaintiff Oswald’s heating costs exceed the utility allowance provided to them. Plaintiff Boles receives AFDC payments of $594.00 per month and lives in a household of four persons. She receives a total rent subsidy of $121.00 per month.

Defendant Anthony Earl is the governor of the State of Wisconsin and as such is responsible for enforcing the laws of the State of Wisconsin and ensuring state compliance with laws of the United States. Pursuant to 42 U.S.C. § 8624(a)-(c), the Chief Executive Officer of each state which applies for low income energy assistance must certify in that state’s application that the state will comply with the specified statutory conditions in the development of the state plan and the distribution of assistance.

Defendant Linda Reivitz is the Secretary of the Department of Health and Social Services and as such was charged with the drafting and administration of the 1983-84 LIEAP plan and is responsible for the drafting and operation of the 1984-85 LIEAP plan. At all relevant times the defendants were acting under the color of state law.

The Low Income Home Energy Assistance Program is a federal block grant program authorized under the Low-Income Home Energy Assistance Act of 1981, 42 U.S.C. § 8621 et seq. The program is intended to assist low income households in meeting the high costs of energy and these households’ emergency energy-related needs. The Low Income Home Energy Assistance Program is administered by the United States Department of Health and Human Services.

The amount of LIEAP money allocated to each state is based on a formula which takes into consideration the severity of weather in the state, the aggregate residential energy expenditures in the state, and the number of low income residents of the state. This formula seeks to assure that each state receives the funds minimally necessary to assist low income residents to meet a portion of their energy costs. Pursuant to this formula, approximately $64 million of LIEAP fund was allocated to the State of Wisconsin for FY 1984 and the State of Wisconsin anticipates that the allocation for FY 1985 is $74 million. In addition, the State of Wisconsin had $6.5 million of unspent FY 1983 funds to spend in 1984 and has $11.8 million available for LIEAP from unspent FY 1984 funds. The State of Wisconsin had $70.5 million to spend on LIEAP in FY 1984 and estimates that there will be approximately $85.8 million available for the LIEAP program for FY 85 or the 1984-85 heating year.

The Department of Health and Social Services estimates that at least 6,300 Wisconsin households living in subsidized housing would be eligible for LIEAP payments apart from their receipt of rent subsidies [Deposition of Mary Southwick at pp. 23-24],

For the 1983-84 heating year, tenants who received any form of federal assistance for housing costs were denied eligibility for LIEAP payments. The Income Maintenance Manual issued by the Department of Health and Social Services excluded tenants residing in subsidized housing from eligibility. [Deposition of Peter Pawllisch, Exhibit 1].

Pursuant to 42 U.S.C. § 8624(b), the Department of Health and Social Services prepared a draft plan for submission to the federal government in order to obtain funds under the Low-Income Home Energy Assistance Act (LIHEAA) for the 1984-85 heating season. Prior to the expenditure of any funds received from the federal government under this act, the plan must be approved by the Joint Committee on Finance of the Wisconsin Legislature [Deposition of Mary Southwick at pp. 6-7]. The Department of Health and Social Services submitted its draft plan to the Joint Committee on Finance on August 15, 1984. The plan provided that residents of federally subsidized housing would be eligible for LIEAP payments [Deposition of Peter Pawlisch, Exhibit 3].

On September 6, 1984, the Joint Committee on Finance met to consider the approval of the Wisconsin application for LIEAP funds. Representative Mary Lou Munts, the co-chairperson of the Joint Committee on Finance, moved to amend the LIEAP plan as follows:

Motion: Move to modify the department’s 1985 proposal by establishing an effective date of February 15, 1985, for LIEAP eligibility for residents of subsidized housing. Further, direct the department to submit a report to the Joint Committee on Finance by January 1, 1985, regarding options to achieve greater benefit equity between those LIEAP residents who reside in subsidized housing and those who do not.

This motion was adopted by a unanimous vote of the Joint Committee on Finance and acted as an amendment to the plan submitted by the state.

The effect of the action taken by the Joint Committee on Finance is that subsidized housing residents will not receive any LIEAP payments until February 15, 1985, or the date on which the Joint Committee on Finance takes action on the report submitted by the Department of Health and Social Services, whichever is earlier. [Deposition of Mary Southwick at p. 36]. Residents in nonsubsidized housing may begin to receive payments as of December, 1984 [Deposition of Mary Southwick at p. 36]. Residents in subsidized housing may have their payments reduced or eliminated, depending on the action taken by the Joint Committee on Finance, but the Department of Health and Social Services will attempt to prevent residents in subsidized housing from losing payments because funds have run out prior to February 15, 1985 [Deposition of Mary Southwick at pp. 42, 46, 52].

Financial eligibility for LIEAP payments is determined by comparing income to a percentage of the poverty level. If a household’s income is below 105% of the poverty level, it is entitled to a payment of $337.00. If its income is between 105% and 150% of the poverty level, it is entitled to a payment of $235.00. For a household of four, 105% of the poverty level is $893.00 per month and 150% of the poverty level is $1,275.00 per month. [Deposition of Peter Pawlisch, Exhibit 4].

OPINION

Jurisdiction

Before resolving the issues raised by the parties, I must resolve jurisdictional issues even though they are not raised by the parties. Federal Rules of Civil Procedure Rule 12(h)(3); Sadat v. Mertes, 615 F.2d 1176, 1188 (7th Cir.1980). Two jurisdictional issues are present in this case: the existence of a federal cause of action and ripeness.

Plaintiffs claim that defendants violated provisions of the Low-Income Home Energy Assistance Act, 42 U.S.C. §§ 8621-8629. This act does not expressly provide for a private cause of action. Plaintiffs may still state a federal claim if they have an implied private right of action under the act or if they have a cause of action under 42 U.S.C. § 1983 against defendant state officials for deprivation of rights secured by the act. Crawford v. Janklow, 710 F.2d 1321, 1325 (8th Cir.1983). Plaintiffs have alleged general federal question jurisdiction under 28 U.S.C. § 1331 and jurisdiction over a claim of deprivation of civil rights under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.

Plaintiffs are concerned principally with enforcement of 42 U.S.C. § 8624, which is part of a statutory plan that works as follows: A state that wishes to receive federal funds under the Act must submit an application to the Secretary of the federal Department of Health and Human Services. The application must “contain assurances by the chief executive officer of the State that the State will meet the conditions enumerated in subsection (b) of [§ 8624].” 42 U.S.C. § 8624(a)(1). 42 U.S.C. § 8624(b) requires the chief executive officer of the State to certify that the State agrees to use the funds provided to “assist eligible households to meet the costs of home energy,” 42 U.S.C. § 8621(a); make payments only to households that either receive aid to families with dependent children, supplemental social security income, food stamps, or certain veterans’ benefits, or have an income below 150% of the poverty level, 42 U.S.C. § 8624(b)(2); and, of crucial importance in the instant case,

provide, in a manner consistent with the efficient and timely payment of benefits, that the highest level of assistance will be furnished to those households which have the lowest incomes and the highest energy costs in relation to income, taking into account family size; ...

42 U.S.C. § 8624(b)(5). 42 U.S.C. § 8627(a)(1) provides that the Secretary of the Department of Health and Human Services shall “withhold funds from any State which does not utilize its allotment substantially in accordance with the provisions of this subchapter and the assurances such State provided under section 8624 of this title.” The Act neither expressly provides for nor expressly excludes any other remedy-

In Crawford v. Janklow, 710 F.2d 1321, 1325-26, the court held that tenants in subsidized housing who were excluded from eligibility for payments under the Low-Income Energy Assistance Act have both an implied private right of action directly under 42 U.S.C. § 8624(b)(5) and an action under 42 U.S.C. § 1983 for deprivation of rights secured by 42 U.S.C. § 8624(b)(5). Although the tests for determining whether there is an implied private right of action under a statute and whether there is a § 1983 action to enforce rights granted by a statute are similar, see Comment, Passing the Bucks: Procedural Protections Under Federal Block Grants, 15 Harv.C. R.-C.L.L.Rev. 231, 265 (1983), I prefer to analyze the issue in terms of an action under § 1983. Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 2504-2506, 65 L.Ed.2d 555 (1980), established that 42 U.S.C. § 1983 provides a cause of action to enforce rights granted by statute. In Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) the Supreme Court indicated in dictum that two factors may limit the existence of a cause of action under § 1983. First, the statute must provide substantive rights to the individuals who seek to bring an action under § 1983 to enforce the statute. The Court distinguished Thiboutot on the grounds that the plaintiffs in Thiboutot claimed that they had been denied benefits while the plaintiffs in Pennhurst claimed only that the State had not provided adequate “assurances” under 42 U.S.C. §§ 6011 and 6063(b)(5)(C). The Court stated, “It is at least an open question whether an individual’s interest in having a State provide those ‘assurances’ is a ‘right secured’ by the laws of the United States within the meaning of § 1983.” Pennhurst State School and Hospital v. Halderman, 451 U.S. at 28, 101 S.Ct. at 1545. Second, the Court indicated that there might be no remedy under § 1983 if the express remedy contained in the statute is exclusive. Id.

In order to determine whether plaintiff has a cause of action under § 1983, a court must focus on the language and intent of the statute, as well as the nature of plaintiffs’ claims. In Pennhurst, the Court’s first concern was whether the statute’s requirement that the state provide “assurances” that it would take certain actions granted the plaintiffs any substantive rights enforceable under § 1983. In the instant case, 42 U.S.C. § 8624 requires the state to provide “assurances” that are similar in form to those involved in Pennhurst. However, in the instant case, plaintiffs are challenging not only defendants’ failure to provide adequate “assurances,” but also the denial or delay of benefits. It is true that § 8624 does not give plaintiffs an absolute entitlement to those benefits. However, § 8624(b)(5) does require that states give priority to those eligible households having the greatest need. The legislative history of the Act indicates that this priority was intended to be mandatory. See H.R.Conf.Rep. No. 97-. 208, 97th Cong. 1st Sess. 1008, reprinted in 1981 U.S.Code Cong. & Adm.News 396, 1370. I conclude that the priority requirement of § 8624(b)(5) grants plaintiffs a substantive right.

The other concern expressed by the Court in Pennhurst was whether the express remedy granted by the statute was intended as an exclusive remedy. Pennhurst State School and Hospital v. Halderman, 451 U.S. at 28, 101 S.Ct. at 1545. The fact that Congress expressly enacted a remedy may imply that it intended that remedy to be exclusive. However, the presumption is strongest where elaborate and effective enforcement procedures exist. See Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 13-15, 101 S.Ct. 2615, 2622-2623, 69 L.Ed.2d 435 (1981). The remedy provided for by 42 U.S.C. § 8627 is withholding of funds after receipt of “complaints of a substantial or serious nature” that the State has not complied with § 8624(b) and a hearing in the affected state. 42 U.S.C. § 8627(a). This procedure is by no means elaborate. Nor does it effectively protect potential beneficiaries of the Act. Withholding of any funds to the state for its failure to comply with § 8624(b)(5) would not provide any remedy to potential beneficiaries who are allegedly entitled to distribution of funds. Crawford v. Janklow, 710 F.2d at 1326.

The legislative history also supports the view that Congress did not intend to preclude a § 1983 remedy. In adopting the block grant approach for the energy assistance program and other programs, Congress clearly intended to free the states from most federal regulation. See S.Rep. No. 97-139, 97th Cong., 1st Sess. 908-09, reprinted in 1981 U.S.Code Cong. & Adm. News 396, 932-33. However, with respect to the home energy block grant in particular, the Senate report states,

The Committee [on Labor and Human Resources] believes that the provisions highlighted above preserve the integrity of the block grant approach while addressing genuine concerns regarding State accountability and an equitable implementation of the proposed program.

Id. at 910, reprinted in 1981 U.S.Code Cong. & Adm.News at 934. Thus, it appears that although Congress wished to cut back on federal regulation, it did not intend to leave beneficiaries without an effective enforcement mechanism.

Accordingly, I concur with the Court of Appeals for the Eighth Circuit in finding that there is federal question jurisdiction under 42 U.S.C. § 1983 over plaintiffs’ statutory claims. Crawford v. Janklow, 710 F.2d at 1326. Additionally, I note that plaintiffs seek to raise an equal protection claim under the Fourteenth Amendment. In effect, plaintiffs allege that defendants either delayed eligibility for an entire class of persons, or excluded them from eligibility entirely without any rational basis for doing so. This claim is not frivolous. It raises a substantial federal question. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). There is federal question jurisdiction over plaintiffs’ statutory and constitutional claims.

The second jurisdictional concern is ripeness. At least to the extent that the ripeness doctrine is based on the Article III requirement of a “case or controversy,” see 13A Wright, Miller & Cooper, Federal Practice and Procedure 2d § 3532.1 (1984), ripeness is a jurisdictional issue and may be raised by the court on its own motion. Illinois v. United States Environmental Protection Agency, 621 F.2d 259 (7th Cir. 1980). The purpose of the ripeness doctrine is to avoid premature adjudication of issues that lack a concrete factual setting, in situations in which the potential for harm to the plaintiff is remote and uncertain. Resolution of ripeness issues requires evaluation of the “fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).

Ripeness concerns arise in the instant case because defendants as yet have made no final determination on the eligibility of tenants in subsidized housing for LIEAP payments. Until the Joint Committee on Finance acts, it is impossible to know whether the named plaintiffs and the class they seek to represent will receive full benefits, no benefits, or benefits reduced in some way to account for the fact that their rent is subsidized. Issues such as the legality under § 8624(b)(5) of considering plaintiffs’ receipt of a utility allowance in determining their eligibility, and the amount of payments they would receive are clearly not yet ripe. However, plaintiffs are suffering a present injury. Until the Joint Committee on Finance acts, or until February 15, 1985, plaintiffs cannot receive any LIEAP payments, while thousands of other residents, some of whom may be in less need than plaintiffs, would expect to begin receiving payments in December, 1984. Thus, there is a live controversy whether it is legal for defendants to delay payments to tenants in subsidized housing.

Certification of a Class Action

Plaintiffs have moved for an order permitting them to maintain this action as a class action on behalf of two classes: (1) persons who would otherwise have been eligible for low income energy assistance payments for the heating year 1983-84 who were either denied eligibility or discouraged from applying because they resided in federally subsidized housing; (2) all persons currently residing in federally subsidized housing who will not be eligible for low income energy assistance payments until February 15, 1985.

The requirements for maintaining an action as a class action are well - known. First, four prerequisites contained in Rule 23(a) of the Federal Rules of Civil Procedure must be satisfied: the class must be so numerous that joinder of all members is impracticable; there must be questions of law or fact common to the class; the claims of the named plaintiffs must be typical of those of the class; the named plaintiffs must be capable of fairly and adequately protecting the interests of the class. Second, plaintiffs’ claims must fit one of three categories set forth in Rule 23(b). Plaintiffs contend that they may maintain this action under Rule 23(b)(2), which provides for a class action where plaintiffs seek declaratory or injunctive relief and the defendants have “acted or refused to act on grounds generally applicable to the class.”

Defendants first challenge the 1983-84 class on the grounds that the relief sought is retroactive relief barred by the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Pennhurst State School & Hospital v. Halderman, — U.S.-, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984). As plaintiffs point out, the Eleventh Amendment issues are not properly before the court at this time. Since plaintiffs have not moved for relief with respect to the 1983-84 proposed class, and since plaintiffs’ claims with regard to the 1983-84 season may be subject to dismissal on a motion for summary judgment, consideration of certification of the 1983-84 class can be deferred.

Defendants do not dispute that the numerosity requirement of Rule 23(a)(1) is satisfied. The class numbers 6,300 or more households. That is easily enough to meet the numerosity requirement of Rule 23(a)(1). Defendants suggest that depending on the outcome of the decision by the Joint Committee on Finance there may be conflicts of interest within the class. Defendants also contend that the named plaintiffs’ claims are not typical because not all residents in subsidized housing will have energy burdens or energy burdens similar to those of the named plaintiffs.

Defendants’ typicality argument carries little weight. Of course plaintiffs’ claims are not identical to those of other class members, but identity of claims is not required. All members of the class are affected in the same way by the delay in eligibility for payments. The relief plaintiffs now seek would affect all of the class in the same way. And plaintiffs’ claims are typical of those of the class in that they live in different categories of Section 8 subsidized housing. See Crawford v. Janklow, 557 F.Supp. 1146, 1147 (S.D. 1983), aff'd 710 F.2d 1321 (8th Cir.1983).

Defendants’ argument concerning potential conflicts of interest within the class is more substantial. The actions of the Joint Committee on Finance could create diverse interests within the class, which might lead to a situation in which the named plaintiffs are not adequate representatives of the class. See 7 Wright & Miller, Federal Practice and Procedure § 1768 (1972). However, conflicts of interest can frequently be cured by dividing the class into subclasses or taking other appropriate action. Id. at §§ 1765, 1768. In the instant case, there is no reason to deny class certification now because of such potential conflicts of interest, especially because the relief plaintiffs seek at the present time would harm no members of the class and potentially benefit all class members. Potential conflicts can be dealt with under Rules 23(c)(1) and (4). Plaintiffs are represented by Western Wisconsin Legal Services, Inc., and have demonstrated that they will adequately protect class interests. I find that the prerequisites of Rule 23(a) have been met.

Defendants’ denial of any payments until February 15,1985, is applicable to all class members. Injunctive or declaratory relief would affect all class members equally. Therefore, this action is maintainable as a Rule 23(b)(2) class action.

Preliminary Injunction

In Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir.1984), the Court of Appeals for the Seventh Circuit set out in detail the requirements for obtaining a preliminary injunction. Although Roland Machinery concerned an antitrust suit, much of the court’s analysis is generally applicable to this case. The first requirement is that the plaintiffs show both that they have “no adequate remedy at law,” and that they will suffer “irreparable harm” if the injunction is not granted. Id., at 386. In the instant case, which is an action for injunctive and declaratory relief, it is not difficult to find the absence of an adequate remedy at law. As defendants point out, retroactive relief in the form of damages may be unavailable to plaintiffs under the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347. Moreover, even if damages were available at some later date, they would not be an adequate remedy to plaintiffs for the loss of funds which would be provided to them to help them pay for the necessities of life and which they are presumably entitled to receive now.

The issue of irreparable harm is more difficult. It is indisputable that plaintiffs are suffering a present harm. While residents in non-subsidized housing (some of whom may have less need than those in the plaintiff class) are entitled to receive payments now, plaintiffs must wait until the Joint Committee on Finance acts. On the present record, it is difficult to tell whether that harm is irreparable. If plaintiffs are forced to go without heat or other necessities because they have to wait to receive payments, they may suffer irreparable harm. On the other hand, plaintiffs may suffer only a severe but temporary inconvenience if they receive full payments at a later date, particularly if they are protected by a moratorium of energy cutoffs so that they may delay the payment of their energy bills until they receive LIEAP payments, without losing their heat. Plaintiffs have failed to meet their burden of introducing evidence from which I could conclude that they will suffer irreparable harm solely by virtue of a delay in receipt of LIEAP payments.

Plaintiffs also suggest that they may suffer irreparable harm from the delay in receipt of payments because the payments may be reduced or eliminated either because the program runs out of funds in the interim or because action taken by the Joint Committee on Finance is prejudicial to their interests. The deposition testimony of Mary Southwick, Director of the Bureau of Economic Assistance of the Department of Health and Social Services, indicates that these are real possibilities. Southwick testified that the department would attempt to ensure that residents of subsidized housing would not lose their payments because funds run out prior to disbursement to members of the plaintiff class, but Southwick is unable to estimate the number of eligible tenants of subsidized housing with precision [Deposition of Mary Southwick, at pp. 23-24, 42, 46]. Since the department cannot be sure how many subsidized housing residents will be eligible for how much of a fixed sum of money, and since it cannot recall payments already made to non-residents of subsidized housing, the department cannot ensure that members of the plaintiff class will not receive reduced payments or none at all simply because their eligibility for payments was delayed. Moreover, the Joint Committee on Finance retains the authority to reduce or eliminate benefits for subsidized housing residents. [Deposition of Mary Southwick, pp. 6-7, 52],

Reduction or elimination of plaintiffs’ benefits because of the delay in eligibility would be irreparable. The Court of Appeals for the Seventh Circuit has defined irreparable harm as “harm that cannot be prevented or fully rectified by the final judgment after trial.” Roland Machinery Co. v. Dresser Industries, Inc., at 386. As pointed out earlier, it is likely that the Eleventh Amendment will preclude plaintiffs from obtaining retroactive relief. Once the money is spent, plaintiffs will have no remedy to enforce their rights. It may be argued that the harm to plaintiffs is speculative and that plaintiffs cannot demonstrate that they will actually suffer irreparable harm. Although it is true that plaintiffs have not shown the certainty of irreparable harm, they are required only to show “the threat of irreparable harm for which there is no adequate remedy at law.” American Can Co. v. Mansukhani, 742 F.2d 314, 325 (7th Cir.1984). Moreover, plaintiffs cannot be forced to wait until the harm is a certainty only to find that their claims are barred by the Eleventh Amendment. I find that plaintiffs have met the first test by their showing of a significant or substantial threat of irreparable harm.

The next requirement is to weigh the irreparable harm to plaintiff “against any irreparable harm that the defendant can show he will suffer if the injunction is granted.” Roland Machinery Co. v. Dresser Industries, Inc., at 387. Defendants have not argued that they will suffer irreparable harm if a preliminary injunction is issued. I find that the threatened injury to the plaintiffs outweighs any harm that might be inflicted on defendants. American Can Co. v. Mansukhani, 742 F.2d at 325.

The next factor to be considered is plaintiffs’ likelihood of success on the merits. At a minimum, plaintiffs must show “some likelihood of success on the merits”; the degree of likelihood of success which the plaintiff must show depends on or is interdependent with the balance of relative harms: “[t]he more likely plaintiff is to win, the less heavily need the balance of harms weight in his favor; the less likely he is to win, the more need it weight in his favor.” Roland Machinery Co. v. Dresser Industries, Inc., at 387. The only cases dealing with denial of eligibility for payments under the Low-Income Home Energy Assistance Act on the basis of receipt of federal housing subsidies are decidedly in plaintiffs’ favor. Crawford v. Janklow, 557 F.Supp. 1146; Clifford v. Janklow, 733 F.2d 534 (8th Cir.1984).

Two separate issues are raised in Crawford, Clifford, and the instant case. The first is the legality of a complete exclusion (or delay) in payments to persons in subsidized housing. I find that plaintiffs’ likelihood of success on this claim is high. 42 U.S.C. § 8624(b)(5) requires that states give priority for payments under the Act to those persons with the greatest need. Exclusion of subsidized housing tenants violates § 8624(b)(5) because families with the same or greater need will be denied payments simply because they live in subsidized housing. Crawford v. Janklow, 710 F.2d at 1327.

Moreover, exclusion of subsidized housing residents violates the equal protection clause of the Fourteenth Amendment because there is no rational basis for such an exclusion. Crawford v. Janklow, 557 F.Supp. at 1151. By electing to participate in the program established by the Act, the state has acknowledged that it has an interest in providing energy assistance to those of its residents who have the greatest need. Defendants have not shown any rational basis for excluding all persons in subsidized housing. As the facts show, those tenants may have needs as great or greater than persons living in non-subsidized housing. Exclusion of these persons has no rational connection to any apparent legitimate state interest. It may promote administrative convenience and reduce costs, but only to the same extent as a patently irrational measure such as the exclusion of every fourth applicant. The fact that in the instant case plaintiffs have not (at least not yet) been completely excluded from eligibility but have had their eligibility delayed does not alter the fact that they have been singled out for disparate treatment without any rational connection to a legitimate state interest.

Defendants contend that plaintiffs have failed to show that they have a greater need than residents of non-subsidized housing. However, plaintiffs have shown that they have a greater need than some residents of non-subsidized housing who are currently eligible to receive LIEAP payr ments. Financial eligibility under Wisconsin’s LIEAP plan is dependent solely on income: households with an income of 105% or less of the poverty level are to receive $337, while households with an income of 105% to 150% of the poverty level receive $235. Plaintiff Boles lives in a household with four members and has income of $594.00 per month. She receives a total rent subsidy (including her utility allowance) of $121.00 per month. 105% of the poverty level for a household of four in Wisconsin is $893.00 per month. Even if her entire rent subsidy were considered income, plaintiff Boles’s income would still be well under 105% of the poverty level. Yet she cannot now receive payments, while households of four who do not live in subsidized housing can receive payments if their income is under $1,275.00 per month. Plaintiff Boles has shown that she has a greater need than others who are now eligible to receive payments. Moreover, it is likely that defendants’ failure to consider whether the needs of members of the plaintiff class are greater than those of nonmembers violates both § 8624(b)(5) and the equal protection clause.

Plaintiffs’ second claim is that it would violate the Act and the equal protection clause to consider their receipt of a utility allowance and rent subsidies as income in determining their eligibility for LIEAP payments. As I have indicated, this claim is not yet ripe for review. Moreover, this claim is more problematic on its merits. Plaintiffs were successful on a similar claim in Clifford v. Janklow, 733 F.2d 534. However, it is much more difficult for a court to decide what factors a state may legitimately consider under § 8624(b)(5) than to decide whether a state may exclude an entire class of otherwise eligible residents. At the end of § 8624(b) Congress explicitly stated, “The Secretary may not prescribe the manner in which the States will comply with the provisions of this subsection.” By the same token, the federal courts should be wary of offering detailed instructions to the states on how to administer a program Congress intended to be largely, but not totally, discretionary. See S.Rep. No. 97-139, 97th Cong., 1st Sess. 908-911, reprinted in 1981 U.S.Code Cong. & Adm.News 932-35. In order to have a reasonable chance for success on the merits of this claim, plaintiffs would be required at least to present detailed evidence concerning the effect of including the utility allowance or rent subsidy as income for subsidized housing tenants.

The final element of the Roland Machinery test requires that the public interest be considered in cases where the decision on a preliminary injunction motion will have consequences beyond the immediate parties.” Roland Machinery Co. v. Dresser Industries, Inc., at 388. Defendants contend that the public interest will be harmed if they are ordered to pay benefits to plaintiffs before defendants’ study has been completed and the Joint Committee on Finance has acted. However, I have found it likely that defendants’ delay in considering whether to make payments to plaintiffs violates § 8624(b)(5) and the equal protection clause. That being the case, neither the defendants’ nor the public’s interest would be enhanced by permitting defendants to continue to violate federal law. The fact that defendants have inconsistent state law obligations is of little relevance, since their obligations under federal law are controlling. See King v. Smith, 392 U.S. 309, 333, 88 S.Ct. 2128, 2141, 20 L.Ed.2d 1118 (1968).

Accordingly, I find that plaintiffs have met their burden and are entitled to a preliminary injunction. However, determining what relief to grant is not an easy task. Membership in the plaintiff class does not entitle plaintiffs to the payment of benefits, but it does entitle them to consideration of their applications for benefits now. Nevertheless, defendants have considerable discretion in deciding which residents are entitled to payments and the size of the payments to which they are entitled. Plaintiffs’ claim that defendants may not consider the utility allowance and rent subsidies plaintiffs receive in setting the amounts of payments to subsidized housing tenants is not yet ripe. Therefore, I will order defendants to give immediate consideration to plaintiffs’ applications, but I will not prescribe either the amount of payments or the factors defendants are required to consider.

ORDER

IT IS ORDERED that plaintiffs’ motion to certify this action as a class action is GRANTED in part. Plaintiffs may maintain their claims regarding the 1984-85 heating year on behalf of a class consisting of all Wisconsin residents currently residing in federally subsidized housing, either publicly or privately owned, who will not be eligible for low income energy assistance plan payments until February 15, 1985. Leave to maintain this action as a class action is granted on a conditional basis, and may be altered or amended at a later time.

IT IS FURTHER ORDERED that defendants are preliminarily enjoined from denying or delaying low income energy assistance plan payments to plaintiffs solely on the basis of their membership in the plaintiff class. Defendants shall file with the clerk of court within seven (7) days of the date of this order a report setting forth the manner in which they are complying with the order and the special considerations, if any, which they are using in determining the eligibility for payments and the amount of payments granted to members of the plaintiff class. Plaintiffs may make timely written objections and may renew their motion for a preliminary injunction with respect to the administration of the low income energy assistance program.

In all other respects, plaintiffs’ motion to certify this action as a class action and motion for a preliminary injunction are DENIED.

      . Plaintiffs have submitted a supplemental memorandum containing a copy of the report prepared by the Department of Health and Social Services in accordance with the instructions of the Joint Committee on Finance. Plaintiffs contend that in the report defendants confess judgment with, regard to the legality of plans that would consider the utility allowance received by subsidized housing tenants in determining payment levels. Plaintiffs urge the court to order defendants to adopt Alternative 2, Option A, as set out in the report. Under this option, subsidized housing tenants would receive the same payments as other income eligible persons.
      Plaintiffs’ contentions must be rejected. In discussing the fact that the Court of Appeals for the Eighth Circuit has struck down similar plans, defendants do not confess judgment, since that court’s decisions are not controlling here. Moreover, as I have indicated, the legality of a plan that the State of Wisconsin may adopt at some time in the future is not a ripe issue. I will not issue an advisory opinion on the legality of such plans, nor will I direct defendants to exercise their discretion in a particular manner.


author: BERTELSMAN, District Judge.

text:
    Samuel A. CARLOTTA, Plaintiff, v. Marvin L. WARNER, Sole Proprietor d/b/a Normandy Green Apartments, et al., Defendants.
    Civ. A. No. 82-101.
    United States District Court, E.D. Kentucky, Covington Division.
    Jan. 24, 1985.

      William J. Kathman, Jr., Florence, Ky., for plaintiff.
    Mark G. Arnzen, Covington, Ky., for defendants.
   OPINION AND ORDER

BERTELSMAN, District Judge.

This case presents one of the troublesome issues with which courts will be presented in applying the comparative negligence doctrine adopted by the Supreme Court of Kentucky in Hilen v. Hays, 673 S.W.2d 713 (Ky.1984).

Prior to the promulgation of Hilen, this court had granted partial summary judgment in favor of the defendant on the primary charge of negligence against him on the ground that plaintiff was guilty of contributory negligence as a matter of law. Now the plaintiff has moved for reconsideration on the basis of Hilen, which was applicable to pending cases.

Although difficult for humane reasons the original decision was obvious under traditional contributory negligence doctrine. The motion for reconsideration which requires this court to consider as a matter of first impression in Kentucky the role of the doctrine of sole proximate cause in comparative negligence cases is vastly more complex.

FACTS

The defendant is the owner of an apartment complex in the City of Florence, Kentucky. The plaintiff, a young man 19 years of age, was a tenant at that complex. On June 28, 1981, the plaintiff and some friends were swimming at a swimming pool maintained at the complex for use by the tenants. There was no regulation requiring that a lifeguard be provided, and none was present. The complex did have its own regulations — which for purposes of a summary judgment motion must be considered safety regulations — which prohibited floating objects in the pool. A state regulation also provides that “every swimming pool shall be under the close supervision of a trained and competent operator,” although it is clear that constant supervision is not mandated.

On the day of the tragic accident involved here, the plaintiff and some friends were swimming at the pool. They had a large innertube with which they were disporting themselves. Plaintiff had one of his friends hold the tube in position while plaintiff dove through it from the side of the pool. In making the dive, plaintiff struck his head on the tube and sustained permanent injuries to his nervous system. A representative of the management of the apartment complex was present on the premises, but was not at the pool at the time.

The plaintiffs action to recover for his injuries is before this court in the exercise of its diversity of citizenship jurisdiction. 28 U.S.C. § 1332.

The defendant moved for summary judgment. The motion was originally heard before the comparative negligence decision of the Kentucky Supreme Court. Plaintiff argued that defendant was negligent for failure to enforce its regulations against floating objects in the pool and for failure to warn the plaintiff of the hazards of diving through the innertube. The court had no trouble in holding that, although the defendant may have been guilty of some negligence in failing to enforce its regulations, it had no duty to warn the plaintiff of a hazard that was equally as obvious to him as to the pool management.

It was abundantly clear that plaintiff was guilty of substantial contributory negligence in diving through the tube, because he was fully aware of the regulations prohibiting floating objects and of the possibility of sustaining at least some injury in making such a maneuver. Therefore, the court granted partial summary judgment absolving defendant of liability for any injury immediately resulting from the dive. Final judgment was not entered because the plaintiff also contended that the defendant’s agents had failed to properly render him assistance after the accident which failure he contended resulted in some aggravation of his injury. The court held that there was a genuine issue of material fact on this part of the case.

Now, the motion for reconsideration, made after the decision in Hilen, supra, requires the court to reconsider under the doctrine of comparative negligence its granting of the partial summary judgment.

“SOLE PROXIMATE CAUSE” IN COMPARATIVE NEGLIGENCE CASES

The salutary adoption of the comparative negligence doctrine by the Supreme Court of Kentucky resolved many problems in negligence law, but not all. One of those remaining is presented here, that of the slightly negligent defendant versus the profoundly negligent plaintiff. The doctrine of comparative negligence does not mean that plaintiff is entitled to a recovery in some amount in every situation in which he can show some negligence of the defendant, - however slight. If the plaintiff fails to establish that defendant’s negligent act or omission was a substantial factor in causing harm to the plaintiff, or if there was a superseding cause, defendant will not be liable in any amount. Where, as here, the defendant’s negligence is very slight in relation to the negligence of the plaintiff or some other party, or to some force of nature, the law of causation becomes of paramount importance.

The present case provides a vivid illustration of the problem. The plaintiffs damages, when an award for pain and suffering is considered, could easily be in the millions. An apportionment against the defendant in even a small percentage could result in a liability of hundreds of thousands of dollars when the only fault of the defendant was in failing to prevent the plaintiffs deliberately creating an obvious risk and purposefully subjecting himself to it.

A leading text has suggested that “a creative use of the sole proximate cause doctrine may be the most effective means of remedying the quandary” of the overwhelming negligence of one party as compared to the other in comparative negligence situations.

Recent decisions of the Kentucky Supreme Court demonstrate a commitment to follow the Restatement (Second) of Torts approach to the problem of proximate and intervening cause. Deutsch v. Shein, 597 5. W.2d 141, 144 (Ky.1980). Applying the Restatement model to the present case, we find that the following sections control the issue here presented.

“§ 431. What Constitutes Legal Cause
The actor’s negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.”
“§ 432. Negligent Conduct as Necessary Antecedent of Harm
(1) Except as stated in Subsection (2), the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.
(2) If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about.” “§ 433. Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm
The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another:
(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
(c) lapse of time.” (Emphasis added).

The opinion in the Kentucky comparative negligence decision sets forth model instructions embodying the substantial factor concept.

The plaintiff is correct in asserting that there would be a material issue of fact in this case whether the defendant’s agents were negligent in failing to enforce the pool regulations against floating objects. It also cannot be denied that if there was such negligence, it would be a cause in fact of the accident, for if the innertube had been excluded from the pool the plaintiff could not have dived through it.

The issue then focuses on whether or not the active negligence of the plaintiff in not only deliberately encountering but in actually creating the very risk that caused his injury, as compared to the slight and passive negligence of the defendant, if any, prevents as a matter of law any negligence of the defendant from being a substantial factor in causing the accident.

It is stated in comment d. to § 433 of the Restatement, (Second) of Torts:

“d. There are frequently a number of events each of which is not only a necessary antecedent to the other’s harm, but is also recognizable as having an appreciable effect in bringing it about. Of these the actor’s conduct is only one. Some other event which is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of the actor’s negligence insignificant and, therefore, to prevent it from being a substantial factor. So too, although no one of the contributing factors may have such a predominant effect, their combined effect may, as it were, so dilute the effects of the actor’s negligence as to prevent it from being a substantial factor.” (Emphasis added).

Thus, the court is here mandated to determine whether under Restatement (Second) of Torts § 433(a) the negligence of the defendant is so insignificant as compared to that of the plaintiff that no recovery should be had despite the doctrine of comparative negligence or, in other words, whether the plaintiff’s negligence is the sole proximate cause of his injury.

An example of the correct method of analysis may be found in the decision of Chief Judge Nealon of the United States District Court for the Middle District of Pennsylvania in Herman v. Welland Chemical, Ltd. There, the court applying Pennsylvania’s use of the Restatement model states:

“Whether the issue is discussed in terms of proximate cause or legal cause the underlying considerations and the result are the same. Under the older and more traditional approach the issue was whether the defendant’s conduct was a proximate cause or a remote cause. Under the Restatement approach the issue is whether the defendant’s conduct was, on the one hand, a ‘substantial factor’ or a ‘substantial cause’ or, on the other hand, whether the defendant’s conduct was an ‘insignificant cause’ or a ‘negligible cause.’ See, Section 431 Restatement of Torts, Second. The determination of the issue simply involves the making of a judgment as to whether the defendant’s conduct although a cause in the ‘but for’ sense is so insignificant that no ordinary mind would think of it as a cause for which a defendant should be held responsible.”

I have struggled long and hard with the application of this test to the facts here, being fully conscious of the impact of my decision. As much as I would like to evade the duty, I can only conclude that any negligence on the part of the defendant here was so insignificant or negligible in relation to the plaintiff’s own negligence that, as a matter of law, it may not be considered a substantial factor in causing the accident.

It is well to clarify some basic concepts because of the enhanced importance of causation doctrines in comparative negligence jurisdictions.

It should be pointed out that the analysis required here concerns the doctrine of substantial factor rather than superseding cause. Superseding cause does not come into play until it has already been established that the defendant’s negligence is a substantial factor in causing the plaintiff’s injury. Superseding cause involves the negligence of a third party or the intervention of some natural force. The defense of superseding or intervening cause as such is not properly-applied to the plaintiff’s negligence.

Without in any way attempting to formulate a rule that would be all-inclusive in future cases, I am persuaded here by the consideration that the negligence of the defendant was passive while that of the plaintiff was active in the sense that had a third person been injured by this event, say the person holding the innertube, the defendant would have been entitled to indemnity from the plaintiff in an action by that person.

It would be an anomaly to hold that an overwhelmingly negligent plaintiff could recover from a defendant in a situation such as this where the defendant’s negligence was passive or secondary in relation to that of the plaintiff, such that under appropriate circumstances the defendant would be entitled to indemnity from the plaintiff. In most such situations the defendant’s negligence would not be a substantial factor, or, to put it another way, the plaintiff’s own negligence would be the sole proximate cause of the accident.

Prior to the adoption of comparative negligence such an analysis was not usually necessary, because any negligence of the plaintiff which was a substantial factor in causing his own injury was a complete bar to recovery. Nevertheless, the law of Kentucky has always been clear that the overwhelming negligence of one party can prevent the negligence of another party from being the proximate cause of an event, even where such negligence was undoubtedly a cause in fact. This is the situation we have here. As the cases cited in the footnote show, this doctrine can be used by plaintiffs as well as against them.

This is not a case where a defendant negligently permitted a risk to exist, such as an open pit in a dark place, or an icy highway, which risk the plaintiff then negligently encountered. Here the plaintiff created the risk. Similarly, we would have an entirely different case had the plaintiff here negligently dived into an object that had floated under the diving board. In such cases, the court would permit the negligence to be apportioned by the jury-

Here, it bears repeating, the plaintiff actively created a risk which did not previously exist by causing the innertube to be placed under the board and attempting to dive through it. Nor was he a heedless child or one otherwise requiring special protection. Such a factor would reduce the degree of his negligence and enhance that of the defendant. Rather, he was an adult experienced in swimming and diving and with the rules he was violating and fully aware of the risk that he could sustain some substantial injury from diving through the innertube, although he may not have anticipated the exact harm which occurred.

Even under comparative negligence liability is not automatic. I am well aware of the danger of allowing the doctrine of sole proximate cause, if over-employed, to eviscerate the enlightened doctrine of comparative negligence adopted by the Supreme Court of Kentucky. Nevertheless, the use of sole proximate cause remains viable under comparative negligence, although it will be a rare case where the comparative fault is not submitted to the jury for apportionment. This is, however, one of those rare cases.

The situation here is analogous to that of a person who would knowingly and deliberately violate the speed limit and then sue the police for permitting him to do it. At the risk of being tediously redundant, the court wishes to emphasize that the basis of this ruling is the plaintiff’s active creation of a risk that would not have otherwise existed but for his deliberate act. The only negligence of the defendant was in failing to prevent plaintiff from actually creating the risk.

CONCLUSION

In summary, we have the following factors which the court believes mandates a holding as a matter of law that the defendant’s negligence was not a substantial factor in causing this accident.

(1) The plaintiff’s negligence was active, the defendant’s passive.
(2) The plaintiff’s act was deliberate, the defendant’s inadvertent.
(3) The plaintiff was a knowledgeable adult, not a minor or other person to whom the defendant owed a duty of special protection.
(4) There was no risk until the plaintiff created it.
(5) The only negligence of defendant was in failing to prevent plaintiff from injuring himself.

It is obvious that some of these factors are overlapping. Nor should they be considered all-inclusive. I have merely found them useful guidelines in considering this matter.

Therefore, the motion for reconsideration must be denied, and IT IS SO ORDERED.

      . 673 S.W.2d at 720.

      . 461 Ky.Admin.Regs. 6:030 § 18(2). Although not without ambiguity this regulation seems primarily concerned with the observance of prescribed sanitary measures.

      . Cf. Bartley v. Childers, 433 S.W.2d 130 (Ky. 1968); C & O R. Co. v. Biliter, 413 S.W.2d 894 (Ky.1967).

      . Grimes v. Hettinger, 566 S.W.2d 769, 772 (Ky. App.1978), Cf. Smith v. American Flyers, Inc., 540 P.2d 1212 (Okl.Ct.App.1975) (regulations providing for supervision gave rise to no duty to prevent plaintiff from diving through innertube; defendant in Smith did not have regulation of its own, however.)

      . Prosser & Keeton, Torts, 474-475, n. 56 and accompanying text (5th ed. 1984); V. Schwartz, Comparative Negligence, § 4.4; State v. Kaatz, 572 P.2d 775, 780 (Alaska 1977); Herman v. Welland Chemical, Ltd., 580 F.Supp. 823 (M.D. Pa.1984).

      . By the same token if defendant's negligence is overwhelming in comparison to the plaintiff’s, defendant may be 100% liable on the ground that any negligence of plaintiff was not a substantial factor in causing the accident. Prosser, supra, n. 5.

      . Id.

        . Hilen v. Hays, 673 S.W.2d at 720.

      . The case differs from Grimes v. Hettinger, supra note 4, holding that there was no duty to supervise the conduct of adolescents swimming in a residential pool because here the state regulations do impose a duty of "close supervision” and the adoption by the pool of regulations of its own creates an issue of fact at least at the summary judgment stage whether there was a duty to enforce them. See cases in n. 3, supra.

      . That is, in the "but for" sense of Restatement (Second) of Torts, § 432(1).

      . Restatement (Second) of Torts § 434 reads:
      "It is the function of the court to determine
      (a) whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff; ____”

      . 580 F.Supp. 823 (M.D.Pa.1984).

      . 580 F.Supp. at 827, quoting Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977) (emphasis in original).

      . Restatement (Second) of Torts § 440, et seq.; Presser v. Siesel Construction Company, 19 Wis.2d 54, 119 N.W.2d 405, 409 (1963). But see, State v. Kaatz, 572 P.2d 775, 783 (Alaska 1977).

      . Under Kentucky law, if two defendants breach a duty thereby causing injury to a plaintiff, a defendant who is passively negligent, such as failing in a duty of inspection, may have indemnity from an actively negligent defendant, although the plaintiff may recover from either or both. See, e.g., Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165 (1949), reaffirmed in Burrell v. Electric Plant Board, 676 S.W.2d 231 (Ky.1984) (subsequent to comparative negligence decision).
      Of course, the case at bar does not present an indemnity situation because no third party is involved. Cf. Harris v. Comair, 510 F.Supp. 1168 (E.D.Ky.1981), aff'd 712 F.2d 1069 (6th Cir.1983).
      This court respectfully disagrees with the Alaska court in State v. Kaatz, 572 P.2d at 783, in condemnation of the use of active and passive negligence in the comparative negligence context. So long as it is understood that a sin of omission can still be active negligence in some circumstances and that negligence of the parties is only considered active or passive in relation to each other, I believe the distinction has utility in cases such as this. It is useful to recall exactly how the court described the active-passive/primary-secondary dichotomy in the classic case of Brown Hotel Co. v. Pittsburgh Fuel Co., 224 S.W.2d at 167:
      “Where one of two parties does an act or creates a hazard and the other, while not concurrently joining in the act, is, nevertheless, thereby exposed to liability to the person injured, or was only technically or constructively at fault, as from the failure to perform some legal duty of inspection and remedying the hazard, the party who was the active wrongdoer or primarily negligent can be compelled to make good to the other any loss he sustained.”
      Where such a situation exists, as here, there is a powerful thrust toward finding that the passively negligent party’s negligence is not a substantial factor of the actively negligent party’s injury. That is not to say that the active-passive distinction provides a never-failing litmus test. But I believe it to be a useful factor to consider in a substantial factor analysis. Of necessity, of the great variety of cases that will arise, each must turn to some extent on its own facts.

      . Lee v. Dutli, 403 S.W.2d 703 (Ky.1966); Lawhorn v. Holloway, 346 S.W.2d 302 (Ky.1961). In both these cases plaintiffs were relieved of the effects of their contributory negligence through use of the doctrine of “sole proximate cause.”

      . Cf. Presser v. Siesel Construction Co., 19 Wis.2d 54, 119 N.W.2d 405 (1963) (workman fell into pit in darkness, negligence compared).

      . Cf. State v. Kaatz, 572 P.2d 775 (Alaska 1977).

      . Cf. Toeller v. Mutual Service Casualty Ins. Co., 115 Wis.2d 631, 340 N.W.2d 923 (Wis.Ct. App.1983) (negligence of child plaintiff not sole proximate cause); Cirillo v. City of Milwaukee, 34 Wis.2d 705, 150 N.W.2d 460 (1967) (rowdyism of unsupervised infant plaintiff not relieve absent teacher of liability).

      . Morgan v. Pennsylvania General Ins. Co., 87 Wis.2d 723, 275 N.W.2d 660, 667 (1979).

      . Cf. V. Schwartz, supra, n. 5, at 89.

      . Id. at 91.

      . This factor distinguishes this case from Hilen v. Hayes, supra, in which the defendant was actively negligent in driving while intoxicated.

      . This factor distinguishes this case from Dendy v. City of Pascagoula, 193 So.2d 559 (Miss. 1967), in which the defendant created a risk by allowing a deceptive situation to exist regarding the depth of the water into which plaintiff dove. Also, the city had notice of prior accidents which increased its negligence.


author: GONZALEZ, District Judge.

text:
    Paul DIXON, Plaintiff, v. APACHE TRADING CORP., Rogny Rodriguez and Alice Clancy, Defendants.
    No. 84-6987-CIV.
    United States District Court, S.D. Florida, N.D.
    Jan. 24, 1985.
    Theodore Eagans, Los Angeles, Cal., for plaintiff.
    Charles D. Franken, Fort Lauderdale, Fla., Ronald J. Stauber, Los Angeles, Cal., for defendants-.
   GONZALEZ, District Judge.

THIS CAUSE has come before the Court upon the defendant Apache Trading Corporation’s motion to stay proceedings pending arbitration. The Court has considered the motion, and being otherwise duly advised, it is

ORDERED AND ADJUDGED that the defendant’s motion to stay proceedings pending arbitration be and the same is hereby GRANTED. Insofar as plaintiff’s action is brought under the Commodity Exchange Act and not the federal securities laws, the Court finds no reason to apply the doctrine of intertwining and the Wilko doctrine, which require judgment resolution of federal securities claims before arbitration of state and common law claims may commence. Significantly absent in the Commodity Exchange Act is a congressional directive proscribing arbitration, which in fact does exist in section 14 of the Securities Act of 1933, 15 U.S.C.A. § 77n (West 1981), and section 29(a) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78cc(a) (West 1981). See Brown v. Dean Witter Reynolds, Inc., 601 F.Supp. 641, (S.D.Fla.1985). The Court finds the Fifth Circuit’s decision in Smoky Greenhaw Cotton Co. v. Merrill Lynch Pierce Fenner & Smith, Inc., 720 F.2d 1446 (5th Cir.1983), to be persuasive on this subject, and thus directs counsel to that opinion for a more detailed account of the basis for this Court’s decision.

In Smoky Greenhaw, plaintiff’s complaint purported to state a claim under the Commodity Exchange Act and the Securities Exchange Act of 1934. The court of appeals ruled that the parties could not first arbitrate the issues because of plaintiff's federal securities claim. The court concluded, however, that where, as here, a complaint only states a claim under the Commodity Exchange Act, then the issues are proper subjects for arbitration.

Accordingly, the defendant’s motion to stay proceedings pending arbitration is granted. The Court shall retain jurisdiction over this action to enforce the arbitration award if necessary. The parties are reminded to notify the Court upon the completion of the arbitration proceeding as to the result reached.