author: VON DER HEYDT, District Judge.

text:
    Gregory F. COOK, Plaintiff, pro se, v. James G. WATT, Secretary of the Interior, Defendant.
    No. J82-006 CIV.
    United States District Court, D. Alaska.
    Nov. 22, 1983.
    See also, D.C., 597 F.Supp. 552.

      Gregory F. Cook, Juneau, Alaska, pro se.
    Michael Spaan, U.S. Atty., Anchorage, Alaska, for defendant.
   MEMORANDUM AND ORDER

VON DER HEYDT, District Judge.

THIS CAUSE comes before the court on plaintiff’s motion for summary judgment on his appeal of the Department of Interi- or’s determination to deny plaintiff’s Freedom of Information Act (FOIA) request for disclosure of certain requested documents. The defendant has cross-moved for summary judgment in its favor.

I. FACTUAL BACKGROUND.

In November 1981, plaintiff submitted identical FOIA requests to the Washington, D.C. and Anchorage, Alaska offices of the Office of the Solicitor, United States Department of the Interior. The plaintiff requested:

(a) Solicitor’s Opinion # M-36914, 86 I.D. 55 (1979).
(b) Any opinions, either formal or informal, and any memoranda analyzing or otherwise discussing the legal relationship (if any) between the federal government’s trust relation towards the Indian tribes and subsistence rights or privileges of Alaska Natives.

DOI determined that there were no Solicitor’s Opinions on the identified subject and that the only documents touching on the subject were intra and inter department memoranda generated by DOI in the context of lawsuits in which legal issues touching the subject had been raised. Twenty-six documents were identified. Nineteen of the twenty-six documents have been withheld under claims of privilege pursuant to 5 U.S.C. § 552(b)(5). The attorney work-product privilege was claimed as a source of exemption for twelve documents. The executive privilege or deliberative process privilege was claimed for all nineteen documents.

II. STANDARD OF REVIEW.

The court is authorized by statute to determine this matter de novo. The burden is on the defendant agency to sustain its decision to withhold the documents at issue. 5 U.S.C. § 552(a)(4)(B). The allocation of the ultimate burden to the agency is altered somewhat by the summary nature of the decision before the court: Even under the Freedom of Information Act, the burden remains on the party moving for summary judgment to establish the absence of genuine factual disputes, regardless of where the burden would be at trial. See Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1320-21 (9th Cir.1981). In this instance, the defendant agency responded to plaintiff’s motion for summary judgment by requesting deferral on plaintiff’s motion until the completion of a court ordered Vaughn Index. The defendant has never filed a statement of genuine issues to identify fact issues to be tried, pursuant to Local Rule 5(E)(2). Indeed, the defendant has indicated its belief that the matter can be resolved on summary judgment. See Opposition to Plaintiff Summary Judgment Motion at 5-6. Following completion of the Vaughn Index defendant also moved for summary judgment. On its own motion, the court conducted an in camera review of the documents at issue. After oral argument the court requested and has reviewed further evidentiary materials regarding the existence of a deliberative process and a supplementation of the Vaughn Index with respect to one document.

After a review of affidavits on file and the documents themselves, and in light of the failure of the parties to file statements of genuine facts needing trial, the court concludes that no genuine issues of fact are present to preclude summary resolution. .

III. ATTORNEY WORK-PRODUCT.

An attorney’s work-product is excluded by Exemption 5 from mandatory discovery under the Freedom of Information Act. 5 U.S.C. § 552(b)(5). The work-product is protected without regard to the current status of the litigation for which it was prepared. Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983). The government claims that twelve of the nineteen documents at issue (Vaughn Index 1, 12, 13, 15, 16, 17, 18, 19, 20, 21, 23, 24) are protected under this exemption. The plaintiff claims at the outset that the government is estopped from raising the attorney work-product privilege inasmuch as the privilege was not raised on the administrative level.

In support of his position, plaintiff cites the court to Burlington Truck Lines v. U.S., 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) for the proposition that post-hoc arguments offered at the district court level may not be employed to justify agency action when the grounds were not invoked by the agency in its decision-making. See also Securities & Exchange Comm. v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). Although plaintiffs assertion may have merit when the court engages in limited judicial review under the arbitrary and capricious or substantial evidence standards of the APA, 5 U.S.C. § 706(2)(A)-(E) (1982), neither the cases cited nor the rationale of limited judicial intrusion into agency decision-making support the application of that principle to de novo determinations of FOIA requests pursuant to 5 U.S.C. § 552(a)(4)(B) (1982). To the contrary, case law suggests that while arguments may not be raised for the first time on appeal from a district court’s decision, to raise arguments for the first time at the district court proceedings is not improper. Ryan v. Dept. of Justice, 617 F.2d 781, 792 (D.C.Cir.1980) citing Jordan v. United States Department of Justice, 591 F.2d 753, 779 (D.C.Cir.1978). In Jordan, the Court of Appeals discussed a claim of exemption, (b)(2), which was raised for the first time at the district court level. See 591 F.2d at 763, 779. Accordingly, the court concludes that the defendant may raise the attorney work-product exemption for the first time at these proceedings. Cf. Jordan, 591 F.2d at 791 (MacKinnon, J. dissenting) (failure to cite all grounds not unreasonable).

The attorney work-product privilege does not extend to every written document prepared by an attorney; more narrowly, the exemption protects documents initially prepared in contemplation of litigation or in the course of preparing for trial. Jordan, 591 F.2d at 775. Plaintiff asserts, moreover, that the defendant must establish that the attorneys who prepared the documents would be involved as advocates for the agency’s position in the course of litigation. The Court of Appeals for the District of Columbia noted but did not decide whether such a distinction would be applied to further narrow the attorney work-product exemption. See Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 865 n. 21 (D.C.Cir.1980).

The issue arises in the instant case since eleven of the twelve documents withheld under the claim of attorney work-product privilege were generated by attorneys in various divisions of the Solicitor’s office. The Solicitor’s office, however, would not be responsible, for litigating those cases in contemplation of which the documents were prepared. That responsibility lay with attorneys in the Department of Justice.

Plaintiff has failed to cite the court to any decision which explores the issue only noted by the Court of Appeals in Coastal States. Moreover, in this case there is not an abrupt division of litigation responsibilities between the Department of Justice and the Solicitor’s office in'the Department of Interior. Since the client’s attorney and the eventual litigators cooperate to prepare a litigation strategy, it would disserve the.goal of effective legal representation to protect the work-product of the litigator but not the client’s attorney. The court concludes, therefore, that to the extent it is necessary for attorneys claiming the work-product privilege to be responsible for the litigation, attorneys within the divisions of Interior’s Office of the Solicitor have sufficient responsibility for the litigation to claim the privilege.

Following an in camera inspection, the court concludes that the following documents are attorney work-products prepared in anticipation of litigation or for trial and are exempt from disclosure: Vaughn Index 1, 12, 13, 15, 20, 21, 23, 24. It is apparent from the contents of these documents that each was prepared in contemplation of pending litigation and in an obvious effort to influence or discuss litigation strategy. Document 1 requests a delay or greater equivocation in the language of a proposed litigation report for Togiak v. Andrus. Documents 12 and 13 review the complaint in Hobson v. Kreps in an effort to prepare the Solicitor for interagency discussions and to make litigation strategy recommendations. Document 15 reviews the district court’s decision in North Slope Borough v. Andrus and recommends grounds for an appeal. Document 21 is a letter from a Department of Justice attorney to the Solicitor confirming a litigation posture in an appeal from Hobson v. Kreps. Document 23 is a draft memorandum discussing trust responsibility. The draft discusses a brief prepared by petitioner North Slope Borough in State of California, et al. v. Andrus, Civil No. 80-1991. Document 24 is a litigation report prepared for that litigation.

Documents 16, 17, 18 and 19 present closer questions with respect to the work-product exemption. Unlike the documents described above, it is not apparent that these documents were prepared in anticipation of litigation or for trial. Contrary to the government’s assertion in the Index of Documents and in its memorandum in support of summary judgment, these documents do not expressly set forth suggestions or recommendations for litigation strategy. These four documents are best characterized as research and analyses of the nature and extent of the federal government’s trust responsibility to Alaskan natives.

The court concludes, in balancing the strong interests of the public in access to information against the goal of ensuring effective legal representation within the framework of the adversary system, that these documents are not protected by the attorney work-product privilege. See Jordan, 591 F.2d at 775, Coastal States, 617 F.2d at 864. This conclusion rests not only on a careful review of the contents of the document, but on the defendant’s failure to carry its burden of proof in establishing by extraneous means that these documents were prepared in contemplation of litigation. Cf. Coastal States, 617 F.2d at 861 (agencies must supply sufficient information to allow court to conclude decision to withhold was correct). While it is stated in one of the memoranda that the trust responsibility question was an issue raised in the appeal of North Slope Borough v. Andrus, there is nothing in the documents themselves or in affidavits on file which establishes that these four documents were prepared in contemplation of Interior’s appeal in North Slope Borough v. Andrus.

IV. DELIBERATIVE PROCESS.

The defendant claims that each of the nineteen documents withheld is protected from discovery by the “deliberative process” privilege of exemption (b)(5). This privilege attaches to inter and intra-agency communications that are part of the deliberative process preceding the adoption and promulgation of an agency policy. Jordan, 591 F.2d at 772. The privilege serves “to assure that subordinates within an agency will feel free to provide the decision maker with their uninhibited opinions and recommendations ...; to protect premature disclosure of proposed policies ...; and to protect against confusing the issues and misleading the public____” Coastal States Gas Corp., 617 F.2d at 866.

Notwithstanding its significant purposes, the privilege is narrowly construed. Moreover, the FOIA embodies a strong policy that the public is entitled to know what its government is doing and why. Accordingly, the exemption is to be applied as narrowly as consistent with efficient government operation. Coastal States Gas Corp., 617 F.2d at 868.

After a review of the nineteen documents and the affidavits on file, the court requested further briefing and appropriate evidentiary materials on the issue whether a decision-making process presently exists within the Department of Interior to determine the nature and extent of the Department’s trust responsibilities to- Alaska Natives.

In response, the defendant submitted a supplemental affidavit of Scott Keep. Mr. Keep is an Assistant Solicitor within the Solicitor’s office and is responsible for providing legal services to Interior on matters relating to Alaska Natives. Aff. of Scott Keep, ¶ 1, 3. According to Keep, there is no “currently active plan” for making a general determination as to the nature and extent of the Department’s trust responsibilities to Alaska Natives. Keep further states that work on a proposed Solicitor’s opinion on the subject has been held in abeyance since mid-1981. Supplemental Aff. of Scott Keep, at ¶ 2. Keep’s description contrasts with his earlier statements on October 7, 1982 that disclosure of these documents would “hinder further ongoing deliberations within the Department as to the final Department position.” See Aff. of Scott Keep, ¶ 15. Keep’s most recent statement raises two issues: Was there ever a deliberative process, the products of which are exempt from disclosure? If so, when that deliberative process is held in abeyance, in effect as the result of a policy to address the trust issue on a case by case basis, can the product of the abandoned deliberative process be withheld from the public?

With respect to the showing required from the defendant to establish a deliberative process, the agency has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of the process. Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C.Cir.1973) (Vaughn II). In Vaughn II, the Court of Appeals stated that the absence of a final decision did not necessarily preclude the presence of a deliberative process, but was only indicative of the government’s failure to isolate from the 17 five-drawer filing cabinets of documents those deliberative portions. In this case, a deliberative process is evident from the documents. The process is not well-defined by the government, nor was it apparently ever formally conceived, but the court does recognize a give-and-take between the divisions of the agency aimed at least at airing the positions within Interior. The difficulty, of course, is that the process has now been concluded — or, in the government’s words — held in abeyance — without reaching a final decision. Had a final decision been reached, that decision and the reasoning behind it would be subject to public scrutiny, either as the working law of the agency or under § 552(a)(1)(D).

The government wants the best of both worlds — both the screen of a deliberative process behind which to formulate policy and the option to suspend deliberations and go about its business behind the screen of privilege. Alaskans and the public in general have, however, an interest in decisions deferred, avoided or simply not taken for whatever reason, equal to their interest in decisions made. See Vaughn II, 523 F.2d at 1147.

The strength of this interest counsels the court to order the release of the frequently revised and now deferred draft Solicitor’s Opinion on the nature and extent of the Department of Interior’s trust responsibility to Alaska Natives, document 25. Release of this document will not, in the court’s opinion, interfere with the efficient operation of government. Its release will not unduly chill the candor of inter or intra-agency discussion since this document, unlike memoranda from other divisions which comment upon it, was drafted and revised for the eventual purpose of public release. Its release will not confuse the public to any greater extent than the government’s decade of silence. The possibility that the public may be misled to believe that the document represents a final, reconciled agency position when there may yet be disagreement with the agency is outweighed by the public’s right to know its government’s present analysis and the reasons supporting it. Finally, while the remaining documents are, on their faces, predecisional and recommendatory in nature, document 25 lacks these attributes and, instead appears to be a decision document itself. Unlike other documents, document 25 does not by itself carry the government’s burden to show what deliberative process was in progress. The government’s affidavits taken as a whole do not carry that burden.

A second line of cases in which the “working law” exception to the deliberative process privilege is developed also supports release:

FOIA imposes on the Agency the burden “to sustain its action” in withholding documents. The Agency must thus carry the burden of establishing that documents contain ‘the ideas and theories which go into the making of the law’ and not ‘the law itself, ... ’ This involves showing ‘what deliberative process is involved, and the role played by the documents in issue in the course of that process.’ To establish that documents do not constitute the ‘working law’ of the agency, the agency must present to the court the ‘function and significance of the document[s] in the agency’s decision making process,’ ‘the nature of the decision making vested in the office or person issuing the disputed document[s],’ ... and the positions in the chain of command of the parties to the documents.

Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C.Cir.1982) (citations omitted). At the threshold the court must determine which of the parties carries the burden to establish the existence or nonexistence of an agency policy and to identify or eliminate documents as part of the working law. Defendant cites NLRB v. Sears, Inc., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) and Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975) for the proposition a predecisional document cannot become disclosable working law until it is evident through some expression of the agency that the document was in fact so adopted or used. If this is the standard, the defendant’s assertions in the index of documents and its memorandum that the documents do not establish an agency position on the trust responsibility issue which has been implemented suffices to preserve the predecisional character of each document. The court concludes, however, that the Supreme Court’s decision in NLRB v. Sears does not establish the burden of proof proposed by the defendant. In NLRB v. Sears, the Supreme Court held that if an agency chooses expressly to adopt or incorporate a predecisional memorandum in what would be a final opinion, the adopted memorandum loses its deliberative process protection. 421 U.S. at 161, 95 S.Ct. at 1521. This court does not consider that holding to set out the minimum action an agency must take before a predecisional document loses its privileged status. The court finds instead that the statement above of the Court of Appeals in Arthur Andersen expressly summarizes the allocation of the burden.

The government has failed to establish that document 25 merely contains the ideas that go into the law and is not the law itself. With respect to plaintiff’s argument, the court is not persuaded that the government’s non-committal answers to interrogatories conclusively proves that the view that there are no non-statutory trust responsibilities owed to Alaska Natives is the working law of the agency. The inference that the resource policy decisions identified by plaintiff were simply made without reference to a trust responsibility policy might also be drawn from the government’s answers. The plaintiff’s interrogatories and the answers thereto do, however, permit the inference that resource and subsistence decisions which implicate a policy on the trust responsibility have been made, i.e. that there is working law on the issue. The effect of this inference, which the court accepts, is to even more squarely burden the defendant to show that the views espoused in document 25 are not the working law of the agency.

Defendant has admitted that no current deliberative process is underway. Moreover, recurring decisions faced by Interior necessarily implicate to some degree the government’s policy on the trust responsibilities. See Defendant’s Answers to Interrogatories, Docket # 39. In light of this, the court believes it is the defendant’s burden to show not only that a formal policy has not been announced, but to explain how the Department can conduct its business in the absence of working law on this issue or otherwise what, if not the revised and updated document 25, is the working law. Defendant has not carried this burden.

According to the reasoning set out above, IT IS ORDERED:

(1) THAT defendant’s motion for summary judgment is granted with respect to Vaughn Index documents 1, 12, 13, 15, 20, 21, 23, 24 and that these documents are exempt from disclosure under the attorney work-product privilege, 5 U.S.C. § 552(b)(5).

(2) THAT defendant’s motion for summary judgment is granted with respect to Vaughn Index documents 6, 10, 11, 14, 16, 17, 18, 19, 22 and 26 that these documents are exempt from disclosure under the deliberative process privilege, 5 U.S.C. § 552(b)(5).

(3) THAT defendant’s motion for summary judgment is denied with respect to document 25.

(4) THAT plaintiff’s motion for summary judgment is granted with respect to document # 25 and denied as to all other documents.

(5) THAT the Clerk shall prepare a form of final judgment stating: “In conformity with the court’s memorandum and order of November 22, 1983, it is hereby ordered that the defendant shall release to the plaintiff Vaughn Index document 25. In all other respects, the plaintiff’s Freedom of Information Act appeal is denied.”

(6) THAT the order to release document 25 shall be held in abeyance during the time permitted by law for appeal and thereafter as appropriate in the event of appeal.

      . The plaintiff stated at oral argument that there were genuine issues of material fact which precluded judgment for the defendant on the issue of whether certain documents represented the working law of the agency. The court finds no genuine issues of fact on that issue.

      . Responses to plaintiffs agency requests cited either a document’s status as predecisional internal memoranda or the attorney-client privilege as grounds for denial. See Defendant’s Ex. 2 to Motion for Summary Judgment, attachments B, C, F.


source: Caselaw Access Project

license: Public Domain

text:
    Gregory F. COOK, Plaintiff pro se, v. James G. WATT, Secretary of the Interior, Defendant.
    No. J82-006 CIV.
    United States District Court, D. Alaska.
    June 11, 1984.

      Gregory F. Cook, Juneau, Alaska, pro se.
    Michael Spoon, U.S. Atty., Anchorage, Alaska, for defendant.
   MEMORANDUM AND ORDER

VON DER HEYDT, District Judge.

THIS CAUSE comes before the court on two motions by the plaintiff for attorney fees. The court’s findings of fact and conclusions of law are set out below.

Background

Plaintiff is an attorney who litigated in his own behalf a Freedom of Information Act appeal from a refusal by the United States Department of Interior to release certain documents relating to the Department’s position regarding the nature and extent of the United States’ trust responsibility to Alaska natives.

The United States withheld disclosure of nineteen documents under claims of exemption pursuant to the attorney work product doctrine and the deliberative process doctrine, which doctrines are embodied in 5 U.S.C. § 552(b)(5) (1982). After preparation of a Vaughn index, in camera review and supplemental briefing, the court con-eluded that the attorney work product doctrine protected disclosure of eight of the nineteen documents. The court further concluded that although a deliberative process had once been in progress, no such process was underway within the department and that one key document, a draft Solicitor’s opinion, represented the working law of the department and was subject to disclosure. See Memorandum and Order, November 22, 1983. 597 F.Supp. 545. No appeal was taken.

During the course of litigation the plaintiff brought a motion to compel answers to interrogatories. The motion was granted by the United States Magistrate upon referral. The magistrate’s order indicates that plaintiff was entitled to costs pursuant to F.R.C.P. 37(a)(4) and 5 U.S.C. § 552(a)(4)(E) and set a hearing on costs. No costs or attorney’s fee were imposed by the magistrate. The magistrate also denied a request for a protective order related to the motion to compel. Plaintiff relied on discovery obtained as a result of the motion to compel in arguing for summary judgment and the court, as well, drew an inference from the answers which, in its view, added focus to the government’s burden on the merits.

Attorney’s Fee — Motion to Compel

The parties do not dispute that attorney’s fees pursuant to Fed.R.Civ.P. 37(a)(4) can be assessed against the United States to the same extent that any other party would be liable under this statute. See generally Equal Access to Justice Act, Pub.L. 96-482, § 205(a), 94 Stat. 2327, 2330, repealing Fed.R.Civ.P. 37(f). The government argues that reasonable expenses should not be awarded in this case since the position of the party resisting discovery was substantially justified. The magistrate’s order, although apparently allowing costs, makes no findings with respect to whether the position of the United States was substantially justified. The court concludes that the failure of the government to appeal the magistrate’s determination does not preclude any argument that its position in resisting discovery was substantially justified.

Indeed, the court declines to award plaintiff’s reasonable expenses on the successful motion to compel for the reason that the government’s position was substantially justified. The government resisted discovery on the grounds that answers to the interrogatories would not lead to relevant matters and they were not discoverable. The court agrees. Plaintiff’s motion for attorney’s fee flowing from the motion to compel and pursuant to Fed.R.Civ.P. 37(a)(4) is denied.

Motion for Attorney’s Fee — 5 U.S.C. § 552(a)(4)(E)

a. Pro Se’s Entitlement

The threshold issue for this motion is whether a pro se litigant, himself an attorney, may recover attorney’s fees under 5 U.S.C. § 552(a)(4)(E). The court concludes that the view expressed in Cuneo v. Rumsfeld, 553 F.2d 1360, 1366 (D.C.Cir.1977) upholding a pro se attorney’s award is the better view and would be the position adopted in this circuit. Cf. Ellis v. Cassidy, 625 F.2d 227, 230 n. 2 (9th Cir.1980) (noting trend); but cf. Hannon v. Security Nat’l Bank, 537 F.2d 327 (9th Cir.1976) (non-attorney TILA litigant). In Ellis, the court awarded attorney’s fees to defendant attorneys who represented themselves in defending against a frivolous civil rights claim. The court considered several factors, also present here, as relevant: the attorney fee award furthered the underlying policy; the fee applicants suffered actual loss as a result of time taken away from their law practice; legal services were actually performed; there was no difficulty in placing a dollar value on the services. See Ellis v. Cassidy, 625 F.2d at 230; see also Plaintiff’s Aff. at 2, Feeny Aff., ¶ ’s 3, 5 and 10.

b. Substantially Prevailed

In order to recover-attorney’s fee, the plaintiff must also show that he has substantially prevailed. 5 U.S.C. § 552(a)(4)(E) (1980); Church of Scientology v. Postal Service, 700 F.2d 486 (9th Cir.1983).

(i) Eligibility

The court finds that this lawsuit was reasonably necessary to obtain the information. Plaintiff has a substantial need related to his scholarly pursuits to ascertain the position of the United States in re trust responsibilities to Alaska natives. See Cook Aff., 1-2. The court further finds that this suit had a substantive causative effect on the release of a document highly significant to plaintiff’s request. Had plaintiff not prevailed on summary judgment, the draft Solicitor’s opinion would simply not have been released. Under the test set forth in Church of Scientology, 700 F.2d at 490, it is apparent that plaintiff has substantially prevailed and is therefore eligible for an award of attorney’s fees.

The government, however, argues that the court should consider in determining threshold eligibility under the “substantially prevailed” standard the fact that the court denied disclosure on 18 of the 19 documents withheld. But as the court of appeals noted in Church of Scientology, 700 F.2d at 495 n. 7, the denial of disclosure for these documents does not resolve the fact question as to whether this lawsuit was the cause of the release of the draft Solicitor’s opinion, document 25. Accordingly, the court concludes that a batting average calculation, i.e., one release out of nineteen responsive documents withheld, is relevant to the amount of entitlement but not to eligibility for fees for the document disclosed.

Alternatively, even if the “released to withheld” ratio is relevant to eligibility, the court notes that the draft Solicitor’s opinion represents the present working law of the agency on the trust responsibility issue. Earlier, pre-decisional policy discussions and draft opinions were not released since they were not the working law itself. Nor were litigation reports on now concluded lawsuits. Consequently, even though only one document was released, its significance with respect to plaintiff’s interests is great in that it represents a complete answer to plaintiff’s original request for a Solicitor’s opinion.

Entitlement

Four factors were cited with approval in Church of Scientology, 700 F.2d at 492, in determining whether an award of attorney’s fee is appropriate.

(1) Public Benefit

Plaintiff bestowed a benefit on the public as a whole by successfully litigating the issue of whether the Department of Interi- or had, at least for the purpose of FOIA, adopted working law on the trust responsibility issue not subject to previous publication. Moreover, since the document released may provide information useful in plaintiff’s academic publications there is likely to be dissemination to a public audience. Cook Aff. at 2.

(2) Commercial Interest Benefit

The plaintiff’s affidavit indicates little, if any, commercial benefit will be derived from the document’s disclosure.

(3) Nature of Plaintiff’s Interest

Plaintiff’s, interests in the information sought indicates nothing to do with protecting a private financial interest but rather lie with scholarship and public disclosure. Cook Aff. at 2. This factor, like the public benefit factor, favors an award.

(4) Government’s Basis for Withholding

The government clearly had a reasonable basis for withholding documents 1, 12, 13, 15, 20, 21, 23 and 24 under the attorney work product doctrine. See Memorandum and Order, November 22, 1983 at 7.

Moreover, documents 6, 10, 11, 14, 16, 17, 18, 19, 22 and 26 are exempt from disclosure under the deliberative process privilege. Id. at 8-11. On the other hand, no reasonable basis for withholding document 25, the often-revised and never published “draft” Solicitor’s opinion, was established. To the contrary, upon inquiry from the court the government admitted that despite its initial statements that there was an ongoing deliberative process, it had no currently active plan to formulate a final policy. In sum, taking these factors as a whole the court determines that the government’s reasonable basis in withholding most of the requested documents counsels the court to reduce the amount of plaintiff’s entitlement by approximately one-half. The court arrives at that factor from taking notice that roughly half of the briefing and argument was devoted to the attorney work product doctrine defense. The remaining half of the time and energy devoted to this litigation involved the deliberative process doctrine and, particularly the working law exception to the exemption upon which plaintiff prevailed.

The government has asked the court to hold an evidentiary hearing in the event the court decided to award any fees and to take evidence on certain factors relating to entitlement. See Gov’t opp. at 12. There are no factual disputes regarding whether plaintiff has substantially prevailed, i.e., whether plaintiff had a need for the information and whether the lawsuit was the cause of the document’s release. The government concedes as much by conditioning its requests for an evidentiary hearing on the event of a decision to award some fees. Accordingly, the court of appeal’s admonition to conduct an evidentiary hearing , on the issue of whether plaintiff is eligible for fees, i.e. substantially prevailed, is not triggered since no facts relevant to that issue are disputed. Cf. Church of Scientology, 700 F.2d at 494.

The issues on which the government desires to cross examine plaintiff are (1) whether the plaintiff can by testimony establish further evidence of a benefit to the public; (2) whether, despite plaintiff’s conceded public interest in the disclosure of the documents, there might be revealed, upon cross examination, a private incentive itself sufficiently compelling, see generally Cuneo v. Rumsfeld, 553 F.2d 1360, 1368 (D.C.Cir.1977); and (3) whether plaintiff’s rate of $85.00 per hour and number of hours worked is excessive. See Government’s Opp. at 10-12.

The court concludes that an evidentiary hearing is not required as a predicate to making the findings of fact and conclusions of law sufficient, in the exercise of the court’s discretion, to uphold.an award of attorney fees for 62.5 hours of legal work performed. The first evidentiary issue suggested by the government, i.e. whether the plaintiff is guided by a private quest, is not substantial. Even if plaintiff is solely on a private quest, the court concludes as a matter of law that the public benefited from the court’s ruling that the government may not shield its policy regarding trust responsibility from public scrutiny under the deliberative process doctrine when, in fact, the deliberative process has been put on indefinite hold. See Memorandum and Order, at 11; Cf. Church of Scientology, 700 F.2d at 493 (plaintiff as private attorney general) quoting Exner v. FBI, 443 F.Supp. 1349, 1353, aff'd, 612 F.2d 1202 (9th Cir.1980).

The second evidentiary issue suggested by the government is also not substantial. Even if plaintiff had, in addition to his concededly public interest, a private interest sufficient to insure the instant case, the court does not consider the plaintiff’s private vice, however commercial, a significant taint upon the public virtue served by obtaining public disclosure of an agency’s working law.

The government also argues that an evidentiary hearing is required to determine whether plaintiffs hourly rate and the amount of hours billed are excessive. With respect to the first question, the government has failed to raise the slightest evidentiary question regarding the reasonableness of plaintiff's billing rate. Plaintiff’s affidavits overwhelmingly establish that $85.00 is a reasonable rate regardless of whether the legal services performed are for deposition and trial preparation or for resolution of a dispute on summary judgment. With respect to whether the amount of hours billed are excessive, the court has in effect mooted that issue by reducing by a factor of one-half the amount of plaintiffs entitlement as a result of its conclusion that the government’s position had, in part, a reasonable basis in law. Moreover, although the government has had available for scrutiny plaintiff’s complete time sheets for work performed in this matter, there has been no specific challenge to any instances of excessive billing for the work performed.

Accordingly, IT IS ORDERED:

(1) THAT plaintiff’s motion for attorney fees is granted as follows: Plaintiff may recover attorney fees for 62.5 hours of legal work billed at $85.00 in the amount of $5,312.50.

(2) THAT the Clerk may amend the final judgment entered in this action in accordance with paragraph 1.

      . The government also argued that a party who prosecutes pro se a discovery motion may not collect attorney's fees. The reasoning underlying this conclusion is that a party who prosecutes pro se does not incur attorney’s fees and therefore may not be reimbursed for expenses. See generally 4A J. Moore, Moore’s Federal Practice ¶ 37.02[10-2] (2d ed. 1981). The court declines to rule on this issue in the context of a motion to compel.


author: SINGLETON, Chief Judge.

text:
    Billy William AKERS v. Willis F. ARNETT, Millard Barrington, Joe Galan, Jr., Ben D. Harris, Edward E. Hogan, Lewis Homburg, W.H. Hopkins, Earl H. Kaiser, Jr., Andrew L. Laws, P.R. Phillips, John T. Scardasis, George Sanders, as Trustees of the Maritime Association—I.L.A. Pension Fund.
    Civ. A. No. H-82-3769.
    United States District Court, S.D. Texas, Houston Division.
    Dec. 16, 1983.

      Linda M. Cipriani, Asst. U.S. Atty., Daniel K. Hedges, U.S. Atty., Houston, Tex., William H. Berger, Atty. Dept, of Labor, Atlanta, Ga., for plaintiff.
    James P. Cooney, Royston, Rayzor, Vickery & Williams, Houston, Tex., for defendants.
   MEMORANDUM AND ORDER

SINGLETON, Chief Judge.

This action arises under the Veteran’s Reemployment Rights Act (“The Act”), 38 U.S.C. §§ 2021-2026 (1979 & Supp.1983). Plaintiff Billy W. Akers sues defendants as trustees of the Maritime Association — International Longshoreman’s Association (“I.L.A.”) Pension Fund for pension benefits which he alleges were denied him in violation of the Act. The Act requires that any person who leaves an “other than temporary” position with an employer to serve in the armed forces, satisfactorily completes this service, and applies for reemployment within ninety days of discharge, be “restored by such employer or employer’s successor in interest to such position or to a position of like seniority, status, and pay” if still qualified to “perform the duties of such position” and “unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.” 38 U.S.C. § 2021. Each side has filed a motion for summary judgment upon which, the parties agree, the case will be decided.

The facts are not in dispute. Beginning in 1943 at the age of thirteen, plaintiff began work as a longshoreman through the I.L.A. Local 1273 Hiring Hall. In 1946 he left school to seek work through the Hiring Hall on a daily basis and from January through September of that year worked a total of 349 hours for various employees. In October 1946 plaintiff enlisted in the Marine Corps, serving three years and earning an honorable discharge. In October 1, 1949 Akers returned to the waterfront to resume work as a longshoreman. Twenty-seven years later, on January 5, 1976, he applied for a pension under the I.L.A.’s pension plan, claiming thirty years of continuous service, including the time spent in the Marine Corps. This application was denied. Defendants refused to give credit to plaintiff for his years of military service; thus, by their reckoning, Akers had failed to accumulate the requisite thirty years of continuous service. Upon denial of his application, plaintiff continued to work as a longshoreman until 1980 when he was awarded a pension.

.The trustees denied plaintiff his pension in 1976 on the basis that an employee’s years of military service are credited as part of the period of “continuous service” only after an employee first has worked at least 400 hours in a year preceding military service. Therefore, since plaintiff had not accrued 400 hours in any one year before enlisting, defendants refused to count his three-year tour of duty as a Marine toward his period of continuous service. Instead, the trustees designated 1950 as the year when Aker’s “continuous service” commenced because that is the first year in which plaintiff actually worked more than 400 hours as a longshoreman. The defendants’ determination of plaintiff’s ineligibility for a pension in 1976 depended on an interpretation of the following provisions of the I.L.A. pension plan:

4.1 Age Pension
(a) ...
(b) Section 4.1(b) of the Plan provides in applicable part:
An Employee who ceases employment in the industry on or after October 1, 1974, and prior to October 1, 1976, shall be eligible to receive an Age Pension if such Employee
(1) has made formal application for an Age Pension to the Trustees on forms provided by the Trustees; and
(2) has, as of some date after October 1, 1974 ... (c)ompleted thirty or more years of Continuous Service;
(3) has seven hundred (700) or more Average Hours.
5.1 Continuous Service
Continuous Service is the latest period of uninterrupted employment in the industry beginning with the first year in which the Employee is employed in the industry for at least four hundred (400) hours and ending with the date, on or after October 1, 1956, as of which the Employee claims to have satisfied the eligibility requirements for an Age or Disability Pension under Subsection 4.1 or 4.2 of the Plan. An Employee’s employment in the industry shall be considered uninterrupted unless in each of more an two (2) consecutive years, such Employee has less than four hundred (400) hours of employment in the industry; provided, however, that failure to be employed in the industry for at least four hundred (400) hours in any one year for any of the reasons set forth in the following paragraphs (a), (b), (c) and (d) of this Subsection 5.1 will be governed as follows:
(a) Military Service
If an Employee enters the Armed Forces of the United States and returns to employment in the industry within the time prescribed by law, he shall be credited with four hundred (400) hours for each of the first three (3) consecutive years (and pro-rata for any period less than a full year) of such military service and for such additional period, not to exceed two (2) years, as the Trustees may approve, to protect ' his Continuous Service record, an Employee must furnish to ; the Trustees such evidence of his military service as the Trustees may reasonably require.

Nowhere in the language of these or any other portions of the pension plan does it either state or imply that an employee will earn credit for his military service only after first working 400 hours in one year. In fact, Section 5.1 expressly provides that an employee will be credited with 400 hours a year for at least the first three years of consecutive service in the armed forces; there is no mention of any restriction or qualification on this, much less the one imposed by the defendants.

In explaining their position that the period of “continuous service” commences only after a longshoreman performs 400 hours of actual work in one year, the trustees assert that any other interpretation of the pension plan’s provisions would mean that a person could work as little as one hour in one year, enlist in the same year, and obtain three years of continuous service credit upon return to the industry after discharge. This explanation strikes this court as disingenuous at best. It is unclear just what dangers the defendants are trying to guard against by interpreting the plan in so ungenerous a fashion since it seems unlikely that anyone would try to take advantage of the pension plan in the way suggested. Even if a longshoreman were to serve in the military after putting in only one hour on the docks and subsequently obtain three year’s credit for this service, he would still have to return to the waterfront to put in twenty-seven more years to qualify for the thirty-year retirement pension.

Not only was plaintiff entitled to an age pension in 1976 by the express terms of the plan, but he was also so entitled by the Supreme Court’s decision in Alabama Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977). In that ease, Davis, a permanent employee with Alabama Power Company, applied for a pension upon his retirement. The company gave him credit for his years of employment excluding 30 months he spent in the armed forces between March 18, 1943 and October 8, 1945. Davis claimed that under the Act he was entitled to credit for his period of military service and sued to obtain it. The court reviewed the applicable precedent and from it culled the following test to determine if a particular claimed benefit is a right of seniority secured by the statute:

If the benefit would have accrued, with reasonable certainty, had the veteran been continuously employed by the private employer, and if it is in the nature of a reward for length of service, it is a “prequisite of seniority.” If, on the other hand, the veteran’s right to the benefit at the time he entered the military was subject to a significant contingency, or if the benefit is in the nature of short-term compensation for services rendered, it is not an aspect of seniority within the coverage of [section 2021],

431 U.S. at 589, 97 S.Ct. at 2007.

The court then analyzed Davis’ right to pension credit for military service in light of the two prongs of this test. First, the court determined that Davis had satisfied the “reasonable certainty” requirement because his work history both before and after his tour of duty indicated that had he not entered the military, he would “almost certainly have accumulated accredited service for the period between March 18,1943, and October 8, 1945. Unpredictable occurrences might have intervened, but ‘we cannot assume that Congress intended possibilities of this sort to defeat the veteran’s seniority rights.’ ” Id. at 591, 97 S.Ct. at 2008 (quoting Tilton v. Missouri-Pacific Railroad Co., 376 U.S. 169, 181, 84 S.Ct. 595, 602, 11 L.Ed.2d 590 (1964). Second, the court found that pension payments are predominantly rewards for length of services with the same employer rather short-term compensation for services rendered, and are, as such, a “perquisite of seniority.” With both prongs of the test satisfied, the Court ordered Alabama Power Company to pay Davis a pension which included credit for his months of military service. Id. 431 U.S. at 594, 97 S.Ct. at 2009.

In the case at bar, as in Alabama Power, the plaintiff is requesting that he be given credit toward his retirement pension for his military tour of duty. The retirement plan in question herein, like the one at issue in Alabama Power, vests only after a lengthy period and uses payment formulas that depend on years of service, thus it is a “perquisite of seniority” and the second prong of the Alabama Power test is satisfied. This court also has no difficulty in finding that Akers also has met the “reasonable certainty” standard of Alabama Power. If he had not enlisted, he almost certainly would have accumulated the 400 hours required by the pension plan. Between January 1 and September 30, 1946, plaintiff recorded 349 hours of work. This means that he had the three months remaining in that year to work the fifty-one more hours needed to total 400. Since plaintiff had only begun to work full time beginning in the summer of 1946 when he left school and had still managed to accumulate 349 hours, it would have been extremely unlikely that Akers would not have accrued the threshold number of hours. See Tilton v. Missouri-Pacific Railroad, 376 U.S. 169, 180-81, 84 S.Ct. 595, 602, 11 L.Ed.2d 590 (1964).

Although plaintiff satisfies the criteria set forth in Alabama Power, an issue remains as to whether he is an “other than temporary” employee so as to come within the protection of the Act and Alabama Power. Plaintiff argues that there is no issue in this case of “other than temporary” status because at the time he left for military service, he was an “employee” as defined by the pension plan, and as such had pension rights under the plan. Defendants refute this argument and instead contend that in 1946 Akers was a “casual” laborer, one who worked only when there were not enough regular longshoremen to fill the work gangs required on the docks that day. As a “casual”, defendants argue, plaintiffs situation was analagous to that of the plaintiffs in Cox v. International Longshoremen’s Association, Local 1273, 343 F.Supp. 1292 (S.D.Tex.1972), aff'd per curiam, 476 F.2d 1287 (5th Cir.1973), cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973); they aver that the decision in Cox is persuasive here.

The test in this circuit for determining whether a position held by an employee was temporary or nontemporary is set forth in Moe v. Eastern Airline, 246 F.2d 215, (5th Cir.1957). In that. case, which concerned a probationary employee, the court stated:

Keeping in mind the purpose of the Act, we think that the controlling determination is whether, regardless of the contract of employment, there was a reasonable expectation that the employment would be continuous and for an indefinite time.

Id. at 219.

Since its formulation, the Moe test has been applied by many courts. E.g. Stevens v. Tennessee Valley Authority, 687 F.2d 158, 161 (6th Cir.1982); Cox, 343 F.Supp. 1292 (S.D.Tex.1972). In Cox, the plaintiffs, veterans who served in the armed forces in the late 1960s, sued I.L.A. Local 1273 and thirty stevedore companies under the Act for advancement in seniority as longshoremen and for recovery of back wages which, they allege, were denied them as a result of the defendants’ refusal to grant credit for time spent in the service. The court in Cox decided that the plaintiffs did not come under the umbrella of the Act because as casual laborers, “they could not reasonably expect that their employment would be continuous and indefinite.” Id.

The purpose of the “reasonable expectation” requirement is to recognize that a “temporary position, one which is held only briefly with no preferential right to employment, could very well be lost anyway, even though the person involved was not called to military service.” Cox, 343 at 1298; see also Moe v. Eastern Airlines, 246 F.2d at 219. This court also notes that the Act is to be construed liberally in order to carry out its underlying policy which is to prevent veterans from being penalized for being absent from civilian employment because of service to their country. Fishgold v. Sullivan Drydock & Repair, 328 U.S. 275, 284, 66 S.Ct. 1105, 1110, 90 L.Ed.2d 1230 (1946). Analyzing the facts of this case in light of the policy and requirements of the Act, this court is convinced that Akers qualifies for protection under it. and would be penalized if it were not applied to him.

This case is clearly distinguishable from Cox. In the latter, plaintiffs sued to be advanced from casual to seniority status. In order to receive seniority credit for a given year, a longshoreman had to work 1,200 hours in that year. Failure to work the required 1,200 hours per year resulted in the loss of one seniority year. In the year prior to induction, none of the plaintiffs in Cox worked anything even approaching 1,200 hours. In the case at bar, plaintiff sues for pension rights which would begin to accrue when an employee accumulates 400 hours of work in any one year. There are additional requirements before a longshoreman would be eligible for an age pension, but none of these involves a distinction between casual and seniority status. In fact, a review of the requirements for a pension reveals that it is entirely possible that a “casual” laborer who has never worked sufficient hours in any one year to advance to senior status under the 1200 hour requirement still could qualify for a pension upon retirement. In addition, the plaintiffs in Cox never came close to earning the 1200 necessary hours before entering the armed forces. In contrast, in 1946 Akers was just 51 hours short of achieving the threshold 400 hours, a goal he, in all reasonable probability, would have attained and surpassed with ease.

In view of the facts of the case, this court finds that Akers could have reasonably expected that his opportunity to work 400 hours and more would be indefinite and continuous. Consequently, Akers was a nontemporary employee under the Act and, in accordance with its provisions and the Supreme Court cases interpreting them, this court holds that the clock on plaintiff’s pension began running in 1946; he became eligible to begin collecting it thirty years later in 1976.

II.

The parties are in agreement that the doctrine of laches is applicable to a veteran’s reemployment rights case. Lingenfelter v. Keystone Consolidated Industries, Inc., 691 F.2d 339, 340 (7th Cir.1982); Alber v. Norfolk & Western Railway Co., 654 F.2d 1271, 1278 (8th Cir.1981). There is also agreement that plaintiff’s cause of action accrued in 1976 when his initial application for a pension was denied by the trustees. See Davis v. Alabama Power Co., 383 F.Supp. 880, 893 (N.D.Ala.1974) aff'd per curiam, 542 F.2d 650 (5th Cir.1976), cert. denied, 429 U.S. 1037, 97 S.Ct. 731, 50 L.Ed.2d 748 (1977). Therefore, defendants argue, Aker’s complaint, is barred by the doctrine of laches since it was not filed until six years after the accrual of his right of action.

Laches is an equitable doctrine and “principally a question of the [equity or] inequity of permitting the claim to be enforced.” Bush v. Oceans International, 621 F.2d 207 (5th Cir.1980) (quoting Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946)). An action will not be barred by laches unless the court finds there has been inexcusable delay by the plaintiff in instituting suit and prejudice to the defendant as a result of the delay. As was recently stated by the seventh circuit:

In order to support a defense of laches, there must be a showing of both a lack of diligence by the party against whom the defense is asserted and prejudice to the defending party, (citation omitted.)

Lingenfelter v. Keystone Consolidated Industries, Inc., 691 F.2d at 340. While the plaintiff bears the burden of justifying any delay, if this delay is found by the court to be inexcusable, the burden then shifts to the defendant to demonstrate prejudice. Id.

In this case, even assuming arguendo that Akers was unexcusably dilatory in bringing his claim, the trustees have failed to show that the six-year delay was detrimental to their defense in any significant way. They contend that the passage of the six years since 1976 has critically affected their ability to present evidence about the employment opportunities at the Port of Houston in 1946. Specifically, defendants state that the

records of the number of longshoreman available for work out of Local 1273, their seniority and the works that would have been available to them in the months of October, November, and December, 1946, not to mention the number of longshoremen returning from service and other factors aré simply no longer available. While such a determination would have been difficult in 1976; the passage of six additional years have [sic] only compounded the problem.”

It is unclear to this court, and enlightenment is not forthcoming from the trustees, why records or testimony pertaining to 1946 would be unavailable in 1982 but available in 1976. In fact, it doesn’t appear to this court as if the six-year delay has made an appreciable difference. In the absence of a showing of prejudice to defendants’ case, this court rules that plaintiff’s claim is not barred by laches.

III.

In 1976, upon a refusal of his initial request for a pension, plaintiff worked four more years till 1980. In that year his second application was approved, and he retired. Plaintiff earned substantially more during the period from 1976 to 1980 than he would have received if retired. As a consequence, defendants allege that Akers has sustained no compensable economic loss. In turn, plaintiff relies on Bunnell v. New England Teamsters & Trucking Industry, 655 F.2d 451 (1st Cir.1981), cert. denied, 455 U.S. 908, 102 S.Ct. 1253, 71 L.Ed.2d 446 (1982) as authority for his contention that he is entitled to retroactive pension benefits. While the trustees attempt to downplay the value of Burnell, they cite no cases to contradict it or to support their own position. This court finds itself in agreement with the decision in Burnell and decides that Akers is entitled to be compensated for pension benefits from 1976 to 1980 notwithstanding the fact that he worked during those years. But for the unlawful denial of his pension rights, Akers would not have worked the four additional years.

Finally, with regard to prejudgment interest, the assessment of prejudgment interest is discretionary with the district court. Accordingly, this court is of the opinion that the only way plaintiff can be made whole is by awarding him prejudgment interest from 1976. Hembree v. Georgia Power Co., 637 F.2d 423, 429-30 (5th Cir., Unit B 1981). See Helton v. Mercury Freight Lines, Inc., 444 F.2d 365 (5th Cir.1971).

Accordingly, it is ORDERED, ADJUDGED, and DECREED that plaintiff’s motion for summary judgment be, and the same is GRANTED and defendant’s motion for summary judgment be, and the same is DENIED. Defendants are to pay to plaintiff an amount equal to the sum he would have received in pension benefits from 1976 to 1980 plus prejudgment interest of 9.95% compounded annually.

      . This explanation was contained in a letter dated September 2, 1976 sent by James H. Thacker, Administrator for the I.L.A. Pension Fund, to the plaintiff.

      . An "employee” for purposes of the I.L.A. Pension Fund is defined as "... any water front employee of the Employers whose wage rates and working conditions are established by collective bargaining agreements between the Union and Employers.”
      The term “Employer” was deemed to refer to one of a list of stevedoring companies in Section I of the Agreement of Trust for the I.L.A. Pension Plan.

      . In the year preceding their induction into the Marine Corps, plaintiff Cox worked a total of 714.50 hours, plaintiff Palmer worked 708.00 and plaintiff Heaton worked 646.75 hours.

      . As set forth in section 4.1 of the pension plan, to be eligible for a thirty-year pension, a longshoreman has to complete at least 30 years of continuous service and have 700 or more average hours. Average hours are computed by dividing the aggregate of all hours worked in the industry by thirty.

      . Plaintiff argues that the six-year delay is not attributable to him because the case was in the hands of the United States Department of Labor and the United States Attorney during that period.


author: BRIEANT, District Judge.

text:
    CENTURY AIR FREIGHT, INC., Plaintiff, v. AMERICAN AIRLINES, INC., Defendant.
    No. 77 Civ. 2195-CLB.
    United States District Court, S.D. New York.
    Jan. 5, 1984.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

By motions argued on September 9, 1983 and fully submitted on September 23, 1983, plaintiff seeks partial summary judgment, while defendant seeks an order dismissing certain claims pleaded, and granting summary judgment in its favor with respect to others.

This action was stayed for a time pending application by plaintiff to the Civil Aeronautics Board (“CAB”) for administrative relief upon some but not all of the claims. These administrative proceedings have been concluded. There remains for adjudication here Federal Aviation Act claims and antitrust claims pleaded, which were not resolved by the administrative proceedings and subsequent appellate review thereof.

Except where noted, the facts stated below are not controverted, or may be regarded as conceded solely for purposes of the motions. Defendant American Airlines, Inc. (“American”) is a direct air carrier of freight and passengers. Plaintiff Century Air Freight, Inc. (“Century”) is a licensed air freight forwarder, authorized to engage in that activity by the CAB, as are many others.

In January 1970, American acquired Trans-Caribbean Airways, and as part of that acquisition assumed its carriage of air freight between New York City and San Juan, Puerto Rico. On March 1, 1971, subsequent to that acquisition, American initiated Flight 841, a weekday all-cargo flight from New York City to San Juan. The dispute herein arises out of the subsequent, allocation by American of main deck container positions on that flight.

Affiliated interests of the plaintiff apparently had prior commercial disputes, litigation and arbitration with American totally unrelated to this action or the dispute set forth below. Plaintiff suggests, and we infer, that these disputes left a residue of ill will. In addition, in February 1970, while Century’s application for a license from the CAB was pending, the president of a competing licensed air freight forwarder, Profit-By-Air, Inc. (“PBA”), wrote a derogatory letter to the CAB concerning plaintiff, referred to as a “devastatingly effective poison pen job on Century Air Freight.” Plaintiff’s Memorandum at 1. There is no showing that this letter reached American, or that American shares any responsibility for it. Nevertheless, in June 1971 Century’s freight forwarding license was granted by the CAB.

American Flight No. 841, during the period of its existence, from March 1, 1971 to August 31, 1981, had a scheduled departure from New York which varied between 11:00 P.M. and Midnight, with the return flight from San Juan, American Flight No. 840, scheduled for departure in the early morning immediately following discharge of cargo and reloading. The capacity of the Boeing 707 aircraft operated by American on these flights was as follows: (1) eleven, unbroken standard “A” type freight containers on the main deck of the aircraft; (2) the cubic equivalent in break-bulk form, of one additional “A” type container on the main deck; (3) two specially contoured containers each with the cubic capacity of an “A” type container in the tail section; (4) the cubic equivalent of three “A” type containers of breakb.ulk cargo in the cargo bay compartments of the aircraft. An “A” type container has a capacity of approximately 5,500 lbs., and contains 440 cubic feet.

American allocated the space for the twelve main deck container positions by a “Confirmed Air Freight” method, whereby there was an understanding between American and various shippers and/or forwarders, to the effect that specific numbers of container positions regularly would be available and be used by them on Flight 841. Recurring daily reservations were offered and maintained, conditional upon continuous use of the amount of space reserved by the shipper. Initially, American made offers in part on the basis of the shipper’s demand for container. space on the return flight, Flight 840, which was less lucrative because less air cargo moves in that direction.

According to American, the recurring daily reservations were granted initially in March 1971 on a first-come-first-served basis, and such reserved space did not become fully committed until the end of 1971. By that time, American had allocated eight main deck container positions to PBA, three to Shulman Air Freight, Inc. (“Shulman”) and one to Emery Air Freight, Inc. (“Emery”). These allocations were in effect until 1978.

American asserts that on several occasions during 1971, before the main deck container positions were fully reserved, it offered Century confirmed air space on Flight 841, but that Century declined the offers, “apparently because [Century] believed it had preferable [space] from other carriers.” (Affidavit of George A. Ship-man, sworn to August 10, 1983, ¶ 11 [“Ship-man Affidavit”]). Specifically, it is contended that Century contemporaneously held confirmed air freight space for six to eight “LD-3” type container positions on a late night Eastern Airlines combination passenger/freight flight from New York to San Juan. (Shipman Affidavit, ¶ 13).

American asserts further that Century’s requests for specific space on particular dates on Flight 841 were granted or denied solely on the basis of the availability of space on the particular dates requested. It also contends that in January 1973 Century was given a reserved space for one hundred pounds of cargo, and that in September 1977, after the commencement of this action, American accorded Century a recurring reservation for a weight volume allocation on Flight 841 equivalent to one “A” type container. American did not confirm, however, that the Century freight would move in a container rather than as break-bulk cargo. Finally, American asserts that in 1978 when Shulman abandoned its three reserved container positions, these were filled based upon the requests of at least seven shippers, and that the three shippers granted the space had previously been without any reserved space on Flight 841.

Century contests the foregoing interpretation of events, and asserts that from the time it was first licensed as an air freight forwarder in June 1971, American never offered it any main deck container positions on Flight 841, and that in fact Century’s repeated requests for reserved space were denied consistently. (Affidavit of Salvatore Cirami, sworn to July 2, 1983, ¶ 14 [“Cirami Affidavit”]). It asserts further that its constant requests for confirmed space in main deck container positions were prompted by necessity, because Flight 841 was the only daily all cargo flight between New York and San Juan during the relevant time period with reliable next day delivery service. (Id. at ¶ 15).

While Century does not contest directly that it had confirmed space on an Eastern Airlines combination passenger/freight flight, it does contend that the space on alternatives to Flight 841 was commercially unacceptable because the “LD-3” type containers on such combination flights had only one-third the capacity of the “A” type containers used on the American flight, and because the departure times of the alternative flights were “inconvenient” for loading in New York and ultimate delivery in Puerto Rico. (Reply Affidavit of Salvatore Cirami, sworn to August 24, 1983, ¶ 21). Century also contends that the offer of 100 pounds reserved space, made by American in April 1973 was commercially insignificant, and that the instant litigation was the sole reason for American’s September 1977 offer of the equivalent of one “A” type container space.

On the basis of the foregoing facts, Century alleges that American, in conspiracy with PBA, refused, wrongfully, to deal with it with respect to reserved air freight space on Flight 841 in violation of § 404 of the Federal Aviation Act, 49 U.S.C. § 1374, and sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. American responds, as it did in the substantial correspondence between the parties (see Plaintiffs Exhibit 9), that it did not exclude Century from Flight 841 wrongfully, but rather that its reserved space allocation method or system was commercially necessary to assure the continued existence of the flight, and that, therefore, American could not reasonably cancel the existing continuous reservations of PBA, Shulman and Emery solely for the benefit of the plaintiff.

Federal Aviation Act Claim

Century alleges that American’s refusal to accord it reserved main deck container positions on Flight 841 violates § 404 of the Federal Aviation Act, entitling it to damages on its motion for summary judgment. American, in its motion, seeks to dismiss under Rule 12(b)(6), F.R.Civ.P. so much of the complaint, filed May 5, 1977, as is based on the § 404 claim, on the grounds that Century has no implied private right of action for damages under that statute. In addition, in opposing Century’s motion for summary judgment, American argues that even if there is an implied right of action under § 404, the plaintiff's motion should not be granted because questions of fact remain as to whether (1) American discriminated against Century in assigning reserved space; (2) Century requested reserved air freight under similar circumstances as those who were granted main deck container positions; (3) the allocation system resulted in any injury to competition in the relevant market; (4) the challenged allocation method was commercially reasonable because necessary to sustain Flight 841; (5) the challenged practice was necessary to meet competition from other direct carriers of air freight between New York and San Juan.

It is unnecessary to consider whether the aforementioned issues of fact are material and genuinely in dispute, because this Court agrees with defendant that an air freight forwarder has no implied private right of action for damages against an air carrier under § 404 of the Federal Aviation Act.

Section 404(a)(1) provides in pertinent part that every air carrier has the duty, with respect to interstate and overseas air transportation, to “establish, observe and enforce ... just and reasonable classifications, rules, regulations, and practices relating to such air transportation.” Section 404(b) provides that an air carrier may not make any “unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever” with regard to any person. A fair reading of Century’s papers indicates that it premises its complaint and its motion for partial summary judgment upon both of these provisions.

There is no express statutory authority for a private right of action under either of these subdivisions, therefore, the question of whether an implied right of action is appropriate must be considered. American asserts, and Century has not disputed, that heretofore no court has ever implied such a right under § 404(a). Moreover, defendant contends that no court has ever implied a right under § 404(b) on the part of an air freight forwarder.

Prior to the Supreme Court’s decision in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), a private remedy was readily presumed in favor of one specially injured by the violation of a regulatory statute. However, in Cort, supra, such presumptions were rejected, and a four part test was devised to determine whether Congress had actually intended to create a private right of action in favor of the particular plaintiff seeking to assert that right. 422 U.S. at 78, 95 S.Ct. at 2088. The four factors are (1) whether the plaintiff is a member of a class for whose “especial benefit” the statute was enacted; (2) whether there is any indication of legislative intent to create or deny the remedy sought; (3) whether the implication of the right of action would be consistent with the underlying purposes of the regulatory scheme involved; and (4) whether the cause of action sought is one traditionally reserved to the states. Id.

In an effort to cram the genie back into the bottle, and stem the overwhelming flow of federal civil litigation spawned by J.I. Case v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), which Cort v. Ash did not succeed in doing, this test has been narrowed further in subsequent decisions, which emphasize the need to find affirmative expressions of Congressional intent before implying a right of action. E.g., Middlesex County Sewerage Authority v. National Sea Clammers Ass’n., 453 U.S. 1, 13, 101 S.Ct. 2615, 2622-23, 69 L.Ed.2d 435 (1981) (legislative intent is the “key to the inquiry”); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979) (all considerations should be subordinated to the determination of Congressional intent); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 20, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), quoting Cannon v. University of Chicago, 441 U.S. 677, 742, 99 S.Ct. 1946, 1981, 60 L.Ed.2d 560 (1979) (Powell, J., dissenting) (the relevant question is whether “Congress absentmindedly forgot to mention an implied private right of action”). See also, Siebert v. The Conservative Party of New York State, 724 F.2d 334 (2d Cir.1983). While it is true that the Supreme Court has backslid on one or two such cases recently, notably Merrill Lynch, etc. v. Curran, 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982) and Herman & MacLean v. Huddleston, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983), Siebert makes it clear that “[a] lower federal court ... must employ the analysis currently required by the Supreme Court for making the determination of Congressional intent” (At 337).

Applying such considerations, this Court concludes that Congress intended no private right of action for a violation of § 404.

To begin our analysis, we note that Century is not an intended beneficiary of § 404. As an air freight forwarder, it is itself a regulated entity under the statute, and therefore cannot claim any “especial benefit.” The purpose of the Federal Aviation Act has been defined to be “the protection of the traveling public.” Carceres Agency, Inc. v. Trans World Airways, Inc., 594 F.2d 932 (2d Cir.1979) [travel agent not a beneficiary under § 404(b)]. Air freight forwarders, like travel agents, are members of the air transportation industry who arrange for and purchase air transportation for the benefit of the public at large.

In Carceres, supra, the Court of Appeals observed that there is no indication in the legislative history of § 404(b) that Congress intended to give travel agents a right of action. 594 F.2d at 933-34. Indeed, there is nothing in the legislative history of either § 404(a) or § 404(b) indicating Congressional intent to give any private party a right of action. See 1958 U.S.Code Cong. & Adm.News 3741-72. Furthermore, a companion provision of the Federal Aviation Act, 49 U.S.C. § 1487(a) authorizes a private action in the district court to enforce 49 U.S.C. § 1371(a), which prohibits persons from engaging in air transportation without a CAB certificate. The only other enforcement provision of the Act, 49 U.S.C. § 1487(b), authorizes the CAB or the FAA to initiate proceedings for violations of the Act.

Because Congress has specifically authorized these remedies, an inference follows that there was no Congressional intent to have this Court imply additional remedies. This Court should not alter the legislative design with remedies of its own choosing absent an indication of an intention by Congress that we should do so. Carceres, supra, 594 F.2d at 933; Siebert, supra.

Also, there has been no showing that the implication of a private right of action in this instance would be consistent with the underlying legislative scheme of the Federal Aviation Act, and I believe it would not be. Damage actions do not inevitably complement the work with which the federal regulatory agencies have been charged by Congress. Indeed, in the context of allegations of economic discrimination or unfair trade practices, the necessary inquiry involving economic and policy considerations is often better suited to resolution by the administrative experts of the agency charged with the supervision of the industry than by the results of many disparate civil lawsuits randomly brought, and just as often randomly decided by different courts throughout the nation.

The absence of any strong need for an implied judicial remedy of damages is also demonstrated by the fact that the CAB has already addressed the issues raised by Century, and American has signed a consent order resolving the question of future air cargo space allocations. A damage action is clearly not necessary to further the purposes of the Act, nor is there any reason to believe it was intended by Congress.

Finally, although the existence of a state common law remedy is said to be irrelevant when other parts of the Cort test have not been satisfied, Touche Ross & Co. v. Redington, supra, 442 U.S. at 575-76, 99 S.Ct. at 2489, it should be noted that Century, unlike the travel agent in Carceres, has no damage action under state law.

Accordingly, plaintiffs motion for a partial summary judgment with respect to its § 404 claim is denied, and defendant’s motion to dismiss the claim is granted because this Court concludes as a matter of law that no implied right of action exists for the claimed violations.

Claim Under § 1 of the Sherman Act

Century contends that American and PBA conspired to exclude it from Flight 841 in violation of § 1 of the Sherman Act. (Complaint, ¶ 30; Plaintiff’s Memorandum at 1). American contends that its motion for summary judgment against Century should be granted on this claim because plaintiff has failed to produce significant probative evidence that American and PBA combined or conspired to prevent access by Century to Flight 841, and because that flight is not the relevant market.

Under § 1 of the Sherman Act, Century has the burden’ of proving that (1) there was concerted activity by American and PBA to exclude Century from Flight 841; and (2) that this concerted activity resulted in an unreasonable restraint of trade in the relevant market. National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 960 (2d Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 844, 59 L.Ed.2d 38 (1979).

In its complaint, Century does allege an agreement between American and PBA, and the affidavits and affirmations submitted on this motion present the following evidence in support: (1) that PBA was the beneficiary of American’s refusal to provide Century with reserved container positions on Flight 841 (Cirami Affidavit, ¶ 18); Affirmation of Milton Horowitz, Esq., sworn to July 4, 1983, ¶ 9 (“Horowitz Affirmation”); (2) that at a prior point in time, PBA informed the CAB that Century would be an “undesirable element” in the air freight forwarding business (Cirami Affidavit, ¶ 18); (Horowitz Affirmation, ¶ 9); (3) that American’s failure to accord Century with reserved container positions was motivated by fear of losing PBA as a customer (Cirami Affidavit, ¶ 18); (4) that American and PBA had frequent meetings at which Flight 841 was discussed (Horowitz Affirmation, ¶ 9).

The proffered evidence, if believed, is insufficient to establish an unlawful conspiracy between American and PBA. While it is of course true that “[i]llegal conspiracies ... can rarely be proved through evidence of explicit agreement, but must generally be proved through inferences from the conduct of the alleged conspirators,” Venture Technology, Inc. v. National Fuel Gas Co., 685 F.2d 41, 45 (2d Cir.), cert. denied, 459 U.S. 1007, 103 S.Ct. 362, 74 L.Ed.2d 398 (1982), the plaintiff must nonetheless present evidence of “qualitative value in demonstrating that the parties actually entered into a conspiracy.” Id. at 48. A showing of close relationships between the alleged conspirators, or frequent meetings between them, without more, will not sustain the plaintiffs burden. Oreck v. Whirlpool Corp., 639 F.2d 75, 79 (en banc) (2d Cir.1980), cert. denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 618 (1981). Moreover, a mere showing that a customer such as PBA had the economic power to affect a supplier, here American, in its dealings with another customer such as Century, does not constitute sufficient circumstantial evidence of an unlawful agreement or conspiracy. Id. Nor do the complaints of another customer about the plaintiffs character, even when followed by a subsequent refusal to deal, serve as the basis for inferring concerted activity, absent other evidence of an understanding between the alleged conspirators. See Moore Drug Exchange v. Eli Lilly & Co., 662 F.2d 935, 941 (2d Cir.1981), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 144 (1982).

In the instant case, although it is undisputed that the principal of PBA did send a letter to the CAB critical of Century, there is no evidence suggesting that this was anything more than the unilateral act of PBA, which is not a party to this action. Moreover, that correspondence was written more than a year before American commenced Flight 841. (Cirami Affidavit, ¶ 12).

As to American’s considerations of PBA’s likely reaction if it decreased PBA’s space allocation in favor of Century, American has admitted that it did not wish to risk the loss of its major customer on the flight. (Shipman Affidavit, ¶ 20). This admission, however, does not point inevitably in the direction of a conspiracy, rather it supports equally the innocent inference that American was engaged in exercising reasonable and independent business judgment for its own best interests in a competitive market. Finally, the meetings referred to between American and PBA, (Horowitz Affirmation, ¶ 9) indicate nothing more sinister than that PBA complained about American’s rates and service. There is no reference to the exclusion of Century, or any other competitor for that matter. Indeed, it is doubtful whether a few such meetings over the course of a decade could even be viewed as “close relations” between the two companies.

Furthermore, Century has failed to establish that the space allocation system adopted by American had an illegal purpose or effect.

In its supporting memorandum, Century seeks to establish a violation of § 1 on the basis of two distinct theories. First, it invokes the “essential facility” doctrine, by arguing that American’s allocation was illegal “given the utter domination in the relevant market of the southbound New York to San Juan air freight traffic.” (Plaintiff’s Memorandum at 2). Second, a fair reading of plaintiff’s papers indicates that it also seeks to urge a § 1 violation on the grounds that American and PBA engaged in an illegal group boycott. Id.

The “essential facility” doctrine has four elements: (1) existence of a facility whose use is essential to entry into the relevant market; (2) a facility that for all practical purposes cannot be duplicated; (3) access to the facility could be made to the party seeking entry without interfering with its competitor’s use of the facility; (4) an agreement between the owner of the facility and the potential entrant’s competitor which prevents an equitable sharing of the facility. See Hecht v. Pro-Football, Inc. 570 F.2d 982, 992-93 (D.C.Cir.1977), cert. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978).

It is true that the allocation system adopted by American did prevent an equitable sharing of the space onboard Flight 841, because the reserved space was frozen for all time after the initial allocation was made in 1971. However, Century has not established, nor can it do so, that access to Flight 841 was essential for entry into the relevant market or that the service provided by American could not be duplicated.

Each of these elements of the “essential facility” doctrine depends upon an appropriate definition of the relevant market. Century contends, but the evidence does not support, that the relevant market is a very narrow one: direct, regularly scheduled, nightly, all-freight, air carriage of goods between New York City and San Juan, Puerto Rico. This definition, in effect, defines the relevant market as American’s Flight 841. However, in defining what is the relevant market, this Court must consider, based upon the facts disclosed in the record, what services or facilities are “reasonably interchangeable by consumers for the same purposes.” United States v. duPont (Cellophane), 351 U.S. 377, 395, 76 S.Ct. 994, 1007-08, 100 L.Ed. 1264 (1956).

This Court finds that the relevant market here extended at least to all air carriage of goods between New York and any airport in Puerto Rico. The record indicates that in addition to charter service, a variety of regularly scheduled flights were available. In particular, it is undisputed that at least two direct flights, Eastern Airlines passenger/freight combination Flight 929 and American’s passenger/freight combination Flight 697 left New York at about the same time as Flight 841. (Cirami Reply Affidavit, ¶¶ 21-22; Shipman Affidavit, Ex. A). In addition, throughout the time period covering the dispute, several early morning, afternoon and early evening flights were available, as were indirect flights via Miami and Atlanta. (Shipman Affidavit, Ex. A).

This Court rejects, as unreasonable, Century’s contention that the combination flights should be excluded from the relevant market, because the “LD-3” type containers used on them were only one-third the size of the “A” type containers used on Flight 841, and similarly finds that the alleged “inconvenience” of the early morning, early evening and indirect flights is insignificant in determining the relevant market.

All of the aforementioned flights are reasonably interchangeable with Flight 841, within the context of the shipment of goods by air between New York and Puerto Rico. Indeed, given the flexibility afforded by trucking, the relevant market might be much larger, encompassing air transportation of goods to Puerto Rico from other airports in the mid-Atlantic region' near enough to New York to be reached by motor truck without passing through the congested highways which serve New York City.

Century’s second argument in support of its assertion of a § 1 violation is that American and PBA engaged in an unlawful boycott. This suggests a simple vertical restraint, and as such must be analyzed under a rule of reason. See Oreck Corp. v. Whirlpool Corp., supra at 131. This is not a situation where it has been alleged that a group of plaintiff’s competitors have conspired with several suppliers of a good or service to exclude the plaintiff. See Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212-13, 79 S.Ct. 705, 709-10, 3 L.Ed.2d 741 (1959). For Century to show that the restraint was unreasonable, this Court must be presented with evidence of

“the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts.” Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 243-44, 62 L.Ed. 683 (1918).

Century has offered no evidence whatsoever regarding harm to the air freight forwarding business as a result of American’s space allocation system, nor has it adduced evidence concerning the history and conditions in the relevant sector of that business.

It is, of course, true that a motion for summary judgment may not be granted to defendant herein unless, after resolving all of the ambiguities and drawing all of the inferences in favor of the party against whom summary judgment is sought, that there remain no material facts in dispute. The burden “is on the moving party to establish that no relevant facts are in dispute.” Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir.1980). This Court also observes that ordinarily summary judgment is not entered against a party until that party has had an opportunity to engage in discovery. See Modern Home Institute, Inc. v. Hartford Accident & Indemnity Co., 513 F.2d 102, 109-10 (2d Cir.1975). However, in the instant case, plaintiff, who also seeks summary judgment, has alleged that the facts set forth in its motion establish American’s liability, and that any further discovery would constitute a “sheer waste.” Defendant, under these circumstances, need not be burdened with a round of discovery that plaintiff itself concedes would be wasteful. See Contemporary Mission, Inc. v. U.S. Postal Service, 648 F.2d 97, 105 (2d Cir.1981).

Defendant has demonstrated that the facts upon which Century has relied to establish allegations of a § 1 violation are not susceptible of the interpretation plaintiff sought to give them: insufficient facts have been adduced to establish a conspiracy between American and PBA; the “relevant market” definition proffered by Century is inherently unrealistic and unreasonable; the evidence of an illegal boycott is utterly lacking. This failure of proof on the part of plaintiff, coupled with plaintiff’s disclaimer of any need for further discovery, justifies entry of summary judgment against it. As the Court of Appeals noted in Modern Home Institute, supra, once the defendant has shown “ ‘that the facts upon which [plaintiff] relied to support [its] allegation were not susceptible of the interpretation [it] sought to give them [plaintiff is] obligated by Rule 56(e), F.R.Civ.P., to offer evidence supporting the inferences urged by [it] or else face summary judgment dismissing [its] complaint,” 513 F.2d at 109, quoting from First National Bank v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968).

In addition, the record indicates that American has made an affirmative showing, and this Court finds, that: (1) its failure to accord Century reserved air space was an independent business decision (Shipman Affidavit, ¶ 25); (2) that it was unaware at the time of PBA’s prior communication with the CAB about Century’s license, and that PBA never told any officer or employee of American not to deal with Century (Shipman Affidavit, ¶ 25); (3) that the relevant market in the instant action, as this Court has found previously, consisted at the very least of all air carriage of goods between New York and Puerto Rico (Shipman Affidavit, ¶ 23 and Ex. A); (4) that American could not have granted Century reserved air space without the loss of PBA’s business (Shipman Affidavit, ¶ 19); (5) that this loss would have jeopardized the continued existence of Flight 841, in light of the high volume of freight shipped by PBA on the return flight, an advantage not offered by others (Shipman Affidavit, ¶ 24); and (6) that competition was not harmed by American’s failure to accord Century reserved air space at the expense of others (Shipman Affidavit, Ex. A).

Century’s motion for summary judgment with respect to its claim under § 1 of the Sherman Act is denied.

American’s motion for summary judgment against Century on the § 1 claim is granted.

Claim Under § 2 of the Sherman Act

Century also contends that American’s conduct in denying it reserved main deck container positions on Flight 841 constitutes attempted monopolization as defined by § 2 of the Sherman Act. In order to prevail on this claim, Century must establish that American (1) had monopoly power in the relevant market; and (2) willfully maintained that monopoly. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966).

Century has failed to meet its burden in establishing that American had monopoly power in the relevant market, because it has failed to present credible evidence that the relevant market is defined as it claims. As stated previously, this Court finds that the relevant market is at the least inclusive of all air carriage of goods between New York and Puerto Rico. Therefore, Century’s assertion that American had a 75% share of the market, is, if the two late night combination passenger/freight flights of American and Eastern Airlines are taken into account (Cirami Reply Affidavit, ¶ 21), unsupportable. This Court makes no specific finding as to the percentage of the relevant market that was accounted for by American’s Flight 841, however, the evidence adduced by American (Shipman Affidavit, Ex. A), as to the number of alternative flights, scheduled and charter, available to air freight forwarders indicates clearly that American did not have the “power to control prices or exclude competition.” United States v. duPont, supra, 351 U.S. at 391, 76 S.Ct. at 1005.

Century has also failed to present any credible evidence demonstrating that American wilfully attempted to maintain any market power it had in the carriage of goods by air between New York and San Juan. The only evidence offered by Century is that American failed to provide Century with reserved main deck container positions on Flight 841. It is indeed difficult to fathom how the identity of the customers on this flight could help to maintain American’s position in the market or prevent entry and competition from other scheduled airlines or chartered flights. Nor can Century show that American somehow used its position in the market to eliminate its competitors, The undisputed evidence, (Shipman Affidavit, Ex. A), does not show any noticeable decline in the number of flights, nor the number of direct air carriers offering flights to Puerto Rico from New York during the period of this dispute. Moreover, by its own admission (Cirami Affidavit, ¶ 12), Century concedes that the reason there was no other late night all freight flight, between New York and San Juan at the time, was that , demand, especially on the return flight, was insufficient to support a rival service.

Defendant has established that the facts presented by Century cannot support an actionable claim under § 2, and Century has not adduced any evidence which would militate against entry of summary judgment against it. As noted earlier, defendant has established affirmatively that: (1) the relevant market is at the very least inclusive of all air carriage of goods between New York and Puerto Rico; (2) American lacked the power to control prices or exclude competition in this market; (3) American did not further its position in this market wrongfully by failing to allocate reserved air space to Century; (4) American’s conduct did not demonstrably reduce competition in the relevant market; and (5) that Flight 841 was the only nightly, all freight flight was attributable solely to inadequate market demand, especially on the return flight.

Accordingly, Century’s motion for partial summary judgment with respect to its § 2 claim is denied and the motion of defendant is granted.

Conclusion

In summary, plaintiff’s motion for partial summary judgment is denied in all respects. Defendant’s motion to dismiss the complaint pursuant to Rule 12(b)(6), F.R.Civ.P., with respect to the claim under § 404 of the Federal Aviation Act is granted. Defendant’s motion for summary judgment against plaintiff as to the claims under Sections 1 and 2 of the Sherman Act, pursuant to Rule 56, F.R.Civ.P., is granted.

The Clerk of the Court shall enter final judgment that all relief is denied. See Rule 58 F.R.Civ.P.

So Ordered.

      . In response to American’s motion for dismissal on grounds of primary jurisdiction, Century stipulated to referral to the CAB of so much of the action as was within its jurisdiction, and a stay of all other proceedings in this Court. On December 14, 1979, the CAB's Bureau of Consumer Protection instituted enforcement proceedings alleging that American’s allocation practices on Flight 841 violated § 404(b) of the Federal Aviation Act. American denied any violation. Thereafter, on August 18, 1980, American and the CAB reached agreement, prior to any hearing, on a consent order disposing of the Bureau's complaint, providing for the payment by American of $50,000 in civil penalties, and establishing a new allocation system, subject to annual reassessment, whereby American guaranteed that one "A” type container would be available on Flight 841 to any shipper which regularly used the equivalent of such a container on the northbound Flight 840. The settlement expressly excluded any consideration of anti-trust claims against American, nor did it, quite properly, address itself to the availability of private damage actions under § 404. Century opposed the settlement, but its objections were rejected by the CAB and the Court of Appeals, Century Air Freight Inc. v. Civil Aeronautics Board, 679 F.2d 261 (D.C.Cir.1982). Century's petition for certiorari was denied by the United States Supreme Court on October 18, 1982, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982). On April 25, 1983, Century requested that this action be removed from our Suspense Docket and reactivated.