author: NICKERSON, District Judge.

text:
    The PARENT ASSOCIATION OF P.S. #50, Channell Ellison, a minor by her parent and next friend Jacqueline Ellison, Ceressia Hathorn, a minor by her mother and next friend Ethel Hathorn, Sheniqua Dean, a minor by her mother and next friend Lillie Dean, individually and for others similarly situated, Plaintiffs, v. QUEENS, NEW YORK COMMUNITY SCHOOL DISTRICT #28, Frankie L. Carr, Lynn J. Gross, Ann Hill, Judith Marcerino, Rita Siegel, Phoebe Wiener, Queens, New York Community School Board #28 members (sued in their normal capacity), Doctor Arnold Raisner, Queens, New York Community School District #28 Superintendent, Nathan Quinones, Chancellor of the City School District of the City of New York, Defendants.
    No. 84C2594.
    United States District Court, E.D. New York.
    Jan. 15, 1986.

      James I. Meyerson (Jonathan C. Moore, of counsel), New York City, for plaintiffs.
    Frederick A.O. Schwarz, Jr., Corp. Counsel of the City of N.Y. (Elizabeth J. Logan, Beth Schwartz, Asst. Corp. Counsels, of counsel), New York City, for defendants.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

This is a class action brought by, among others, plaintiffs The Parent Association of Queens Public School # 50 in Community School District # 28 (District 28), and Ceressia Hathorn, a black minor child, who attends the public schools in District 28.

The defendants are District 28, the members of the board of District 28 (District 28 Board), the superintendent of District of 28 (the Superintendent), and the Chancellor of the New York City School District (the Chancellor).

By memorandum and order dated November 16, 1984 this court allowed the action to proceed as a Rule 23(b)(2) class action and conditionally certified the class as consisting of all black and Hispanic students who would have attended Junior High School # 142 (School 142) but for its closure.

Plaintiffs claim that (a) the act of closing School 142 and (b) the wholesale reassignment of the students to Junior High School 8 (School 8) were racially discriminatory acts. Plaintiffs allege jurisdiction of this court pursuant to 28 U.S.C. §§ 1343(3) and (4), 42 U.S.C. §§ 1981 and 1983, and the Thirteenth and Fourteenth Amendments to the United States Constitution. They also invoke the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

I

In substance, plaintiffs contend that, commencing at least as early as 1970, defendants took actions and failed to act knowing that as a consequence School 142 would continuously and inevitably deteriorate and would ultimately have to be closed as a school for the general public. Plaintiffs assert that because blacks attended the school and it was in a black neighborhood defendants “planned and created” the “death” of the school pursuant to an “evolving policy” going back to at least 1970 and that their acts were thus in violation of the Equal Protection Clause and the Thirteenth and Fourteenth Amendments.

II

School 142 opened as a junior high school in 1930, and closed to the general education population at the end of the 1983-1984 academic year. Thereafter a so-called career development center under the New York City Division of Special Education, Office of Citywide Programs, serving students with handicapping conditions, has occupied the building (now known as School 752).

When School 142 closed, the students continuing on in junior high school were assigned, with exceptions not here relevant, to attend School 8. Students graduating from the sixth grade at public schools 50 and 60 who would have attended School 142 for the seventh grade, now attend, with exceptions not pertinent, School 8.

The following tables show the capacity and register of and the percentage of utilization of space at School 142 for the years 1970 through 1983.

Year Capacity Register Percentage of Utilization
1970 1397 1285 92
1971 1425 964 67
1972 1425 1017 71
1973 1445 1017 74
1974 1445 1013 70
1975 1445 878 61
1976 1445 723 50
1977 1445 685 47
1978 1445 602 42
1979 1393 602 43
1980 1409 534 38
1981 1375 500 36
1982 1304 493 38
1983 1215 520 43

By 1984 enrollment at School 142 dropped to 319.

Throughout those years the students attending School 142 were between 91.1% and 96.1% black, with the balance largely Hispanic.

For the years 1970 through 1984 the students attending School 8 have been more than 95% black, with the balance largely Hispanic.

The following tables indicate the capacity and register of and the percentage of utilization of space at School 8 for the years 1970 through 1983.

Year Capacity Register Percentage of Utilization
1970 1505 1710 114
1971 1540 1583 100
1972 1560 1378 88
1973 1560 1246 80
1974 1553 1192 77
1975 1553 1155 74
1976 1587 1083 68
1977 1577 977 62
1978 1522 980 64
1979 1615 827 51
1980 1606 751 47
1981 1554 760 49
1982 1547 723 47
1983 1539 663 43

By 1984 School 142 had become an underutilized facility and consequently had an academic program far less comprehensive than it had been between 1970 and 1974. As plaintiffs state, this condition of underpopulation had the “natural and inevitable consequence” of causing the closing of a school no longer “a viable educational institution.” Plaintiffs’ contentions focus not so much on the immediate decision to close the school but on what they say were deliberate acts commencing at least fourteen years before that were “intentionally racially discriminatory and otherwise based on racial criteria” and led inexorably to the closing.

Ill

Plaintiffs argue that defendants took the following affirmative and intentionally racially discriminatory actions: (1) the building of new junior high schools and the rezonings of students out of School 142 commencing about 1970, (2) the allowance of a free choice transfer program permitting elementary school students to choose to go to a school other than the one in their neighborhood in order to obtain an integrated education, (3) the allowance of special variances to students at School 142, (4) the allowance to School 142 students in 1979 of the option to obtain in another school “special progress” classes not available at School 142, and (5) the encouragement through guidance counselors of parents to have their children apply to go to “better schools.”

Plaintiffs also contend that defendants failed to implement alternatives that would have increased enrollment of School 142 or otherwise improved it. They say defendants (1) failed to support and in the end opposed a proposal by District 27 to rezone children in elementary schools 55 and 121 so that they would attend junior high school at School 142, (2) failed to locate the district office of Board 28 at School 142, (3) neglected the physical plant, (4) failed to appoint a permanent principal for the school from 1970 to approximately 1978, and (5) failed to implement various suggestions brought to them, such as making School 142 a “magnet” school, affiliating with York College, getting monies to continue an aviation program, and locating the Townsend Harris program at the school.

IV

As noted, the court certified the class on whose behalf this case is brought as consisting of “students” both black and Hispanic who would have attended School 142 but for its closing. Some of the testimony on behalf of plaintiffs concerned the adverse effect of the school’s closing on the adults in the “community.” However, the complaint asserts the students’ interests. Therefore the primary concern must be on the nature, quality, and accessibility of the education they are afforded, although they too have an interest in the “community” in which they live.

V

Under the applicable decisions plaintiffs must prove racially discriminatory intent in order to show a violation of the Equal Protection Clause. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Parent Ass’n of Andrew Jackson High School v. Ambach, 598 F.2d 705, 712-13 (2d Cir.1979), and cases cited. Of course, it would be rare to discover an outright admission of the requisite invidious intent, and the court must examine all of the facts together in order to determine whether defendants acted with deliberate racially discriminatory purpose. Intent is a fact, which, like any other fact, may be established by circumstantial evidence. Id. See also Brody-Jones v. Macchiarolo, 503 F.Supp. 1185, 1238-39 (E.D.N.Y.1979); cf. McCray v. Abrams, 576 F.Supp. 1244 (E.D.N.Y.1983), aff'd in part and vacated in part on other grounds, 750 F.2d 1113 (2d Cir.1984), petition for cert. pending, 53 U.S.L.W. 3671 (U.S. March 4, 1985) (No. 84-1426).

Thus, the issue before this court is not whether, looked at in isolation, the act of closing the school was intentionally discriminatory. That closing was rational given the decrease in student population and the consequent diminution in the scope and quality of the school’s educational offerings. The court finds that defendants did not for invidious reasons deliberately starve the academic program. It suffered because the number of pupils enrolled became insufficient to enable the school to maintain courses it had previously offered. By the time the school closed there was good reason to believe that the students would be better served from an academic standpoint at School 8 than they were then being served at School 142.

The critical issue is thus a broader one. It is whether commencing in 1970 the defendants acted with intent to discriminate against the students on racial grounds with knowledge that their actions would decrease the numbers attending the school and lead to its closing, in short whether, in plaintiffs’ words, defendants “planned and created” the “death” of the school “in part, if not in whole” for racial reasons.

A.

The initial and determining causes for the loss of student population to the extent that School 142’s academic offerings suffered were rezonings in about 1970 of students out of the school, the opening in about 1972 of a new junior high school in District 28, somewhat later the opening of a new junior high school in District 27 which drew from School 142’s feeder schools, and the later general decline in students throughout the city. The court does not find a racial purpose in the rezonings and openings. They were initiated in order to alleviate overcrowding, as plaintiffs admit. There is no contemporary evidence of what the defendants did or said from which the court can infer an improper motive. The Superintendent, who took office in 1974 and presumably was supported by the District 28 Board, opposed the change in the feeder pattern brought about by the opening of the new school in District 27. District 28 could not have prevented District 27 from opening that school or the allocation of students to it and there is no evidence from which the court can infer that the Chancellor acted with racially discriminatory . intent.

The record does not support a finding that any of the defendants or their predecessors rezoned students or opened new schools not for the purpose of relieving overcrowding but, foreseeing declining general enrollment, with the invidious intent to discriminate against the black students of School 142 by creating a condition that a decade or more later would lead to its closing.

B.

There is no doubt that some students while in elementary schools that fed School 142 chose to exercise an option available under the City Board integration policy to attend other elementary schools in order to obtain an integrated education. They then proceeded not to School 142 but to a junior high school fed by the elementary school they attended. Plaintiffs admit that in each year the numbers who exercised this option appeared to be relatively modest. Perhaps some thirty five a year did so between 1974 and 1978. Thereafter, because of lack of space, practically no students had the option. But to some moderate extent the integration policy of the City Board caused fewer students to attend School 142.

Plaintiffs attack the City Board’s integration policy. They say that it is a racial policy with an overwhelmingly disparate impact on blacks, that under it the movement is almost exclusively of black students to white schools to the advantage of very few blacks because the City Board regards as integrated only schools fifty percent or more white and the city wide student body is about eighty percent black, and that the policy drains, in numbers and academic programs, schools such as School 142 that would have received the students had they not had the option.

Plaintiffs argue in short that the integration policy produced no significant positive results while having an adverse effect on black schools such as School 142.

The Court of Appeals for the Second Circuit has dealt with this integration policy in Parent Ass’n of Andrew Jackson High School v. Ambach, 598 F.2d 705 (2d Cir.1979) and 738 F.2d 574 (2d Cir.1984). That policy is, as the Court of Appeals has recognized, race conscious and therefore suspect under the Equal Protection Clause. Indeed, Judge Dooling of this court determined that the goal of that policy, and of the plan then before the court, by limiting minority students’ access to schools because of their minority status in order to provide integrated schooling for as long as possible to an increasingly limited number of minority and other students, was unconstitutional because it led to the creation of a dual school system of integrated and segregated schools. Parent Ass’n of Andrew Jackson High School v. Ambach, 451 F.Supp. 1056, 1080-81 (E.D.N.Y.1978). The Court of Appeals did not accept Judge Dooling’s view and held that the goal of ensuring relatively integrated schools for the maximum number of students, even at the cost of limiting freedom of choice for some minority students, survived the strict scrutiny that the Equal Protection Clause required. 598 F.2d at 717-720; 738 F.2d at 579.

The Court of Appeals accepted the probability of “white flight,” though based on “ugly” fears, as a factor that the City Board could take into account in seeking to afford an opportunity for an integrated education to as many students as possible. 598 F.2d at 720. The court thus recognized as valid the proposition that when minority students comprise some substantial percentage of the population of a school the phenomenon of white flight will occur and what was formerly an integrated school will rapidly cease to remain such. The record before this court does not justify the rejection by this court of that factual proposition accepted by the Court of Appeals. Nor is it open to this court to strike a balance of the conflicting interests different from that made by the Court of Appeals.

The City Board urged in that case that the “tipping point” at which white flight will take place was when the minority students became more than fifty percent of the population of a school. Twice the court has remanded for further proof to justify this view. But the presupposition of both opinions of the Court of Appeals was that at some point tipping would occur, perhaps, as the expert of plaintiffs in that case apparently suggested, only when the minority population of a school reached sixty percent.

The doubt which the Court of Appeals had was not to the validity of the basic policy of achieving integration at some expense to other values. The doubt was only as to the degree to which the freedom of students to attend schools other than those in their neighborhood had been limited by establishing as a “tipping point” too low a percentage of minority students in a receiving school. Plainly the higher the percentage of minority members a receiving school accepts the greater will be the drain on the number of students from the schools that those students have opted to leave. Thus, for example, had the City Board fixed sixty percent minority students as the tipping point, School 142 would have lost even more than the few students it did lose.

In weighing the competing considerations under the Equal Protection Clause the opinions of the Court of Appeals in the Andrew Jackson case did not address explicitly the adverse consequences that the integration policy may have had on the population and the academic programs of the schools the students abandoned or later failed to attend. But this court is not at liberty to reexamine the holding of constitutional validity of that policy on the supposition that the Court of Appeals gave no thought to those consequences. Particularly is this so in this case where the serious underpopulation of School 142 and thus its eventual closing would have occurred in the absence of the exercise of integration options.

Plaintiffs object both to the closing of School 142 and to the wholesale assignment of the students to School 8. It is unclear whether plaintiffs contend that, even if the action closing the school was valid, they deem the assignment unconstitutional. They mention in their papers that the students should be permitted to attend any school they choose. To the extent that such a choice is inconsistent with the integration policy, the remarks already made apply. Aside from that policy there was nothing racially conscious about the assignment to School 8 once School 142 was closed.

C.

Plaintiffs point to another factor that they contend contributed to the underutilization of School 142, namely, the grant of variances to students in the School to attend other schools for various reasons personal to the students and to attend “special progress” classes. The school granted only very few such variances a year. There is no showing that the District 28 Board allowed these based on a desire to discriminate on racial grounds or to hasten the closing of School 142 because it was largely black.

Only three to five students a year received variances for personal reasons. The testimony by a parent that a guidance counselor had encouraged her not to enroll her child in School 142 but to seek out a “better” school did not establish racially discriminatory intent. The witness did not testify that the counselor said or did anything that revealed such an intent. The evidence does not justify an inference that the counselor had in mind anything other than the welfare of the child.

Because of the decline in school population and the absence of enough eligible students to fulfill the mandated register School 142 abandoned in 1977 “special progress” classes for students who were two years ahead in reading and one and a half years ahead in mathematics. Students meeting the qualifications were then allowed to apply to attend schools that had such programs. About ten School 142 students a year took advantage of this opportunity in 1977 and 1978. Thereafter, due to lack of space, the students no longer could apply. There is no basis for finding that District 28 permitted the “special progress" applications for invidious reasons.

VII

Plaintiffs contend that for racially discriminatory reasons defendants failed to act when presented with opportunities to increase enrollment in the school and to enrich its academic programs.

A.

Plaintiffs say that the Superintendent and the District 28 Board opposed a 1978 proposal by District 27 to rezone students in elementary schools 55 and 121 so that they would feed into schools in District 28. Plaintiffs contend that this opposition was racially motivated in that the Superintendent and the Board pandered to the desire of white parents in Schools 55 and 121 to avoid feeding their children into a school more heavily black than the one they would otherwise attend. The City Board’s Office of Zoning and Integration recommended rejection of District 27’s proposal because it would have had a segregative effect on the graduates of schools 55 and 121. The Chancellor disapproved the proposal. The City Board and the State Commissioner of Education upheld the Chancellor’s decision on the ground, among others, that the proposed rezoning rather than promoting integration would have had the opposite effect. This court has no basis for questioning that conclusion.

Plaintiffs contend the integration policy is invalid on the same grounds they express in urging that the allowance of integration options was improper. For reasons already stated the Andrew Jackson case is conclusive, and therefore this court holds that the rejection of the proposal by the Chancellor and the City Board, though race conscious, was not invidious.

Plaintiffs urge that because the District 28 Board and the Superintendent opposed a proposal that would have alleviated School 142’s critical problem, namely, declining enrollment, the court should infer that they were motivated by racial considerations. Plaintiffs cannot show, and in any event the court does not find, that the support of District 28 would have persuaded the Chancellor, the City Board, and the State Commissioner to reach a different decision. But plaintiffs argue that in any event the attitude that the District 28 Board and the Superintendent took is probative of an intent to discriminate against the black students in School 142 at other times and in other ways.

It is difficult to measure the extent to which the opposition by District 28 to the proposal was based on a factor that the Court of Appeals has found legitimate, that is, the desire to foster integration for the greatest number for the longest possible time. In a brief filed with the City Board the District 28 Board’s attorney urged that the Chancellor’s decision rejecting the proposal be upheld on the ground, among others, that the reassignment of the pupils of Schools 55 and 121 would have an adverse effect on the opportunity for those students to receive an integrated education. But the primary responsibility of the District 28 Board was to the students of that district, and adoption of the proposal would have addressed to some extent the critical utilization problem that School 142 faced.

If the District 28 Board was actuated by the legitimate desire to maintain the greatest degree of integration for the longest period of time, this court, under the Court of Appeals decisions, could not find it improper. But if District 28 merely pandered to parents reluctant to feed relatively few white students from the District 27 schools into a predominantly black school that would be impermissible motivation in 1978. This court would have to consider it as part of the general mosaic in which School 142 took its earlier actions.

As stated above, the factors that had the determining eventual effect on the loss of enrollment in School 142 were the rezonings and the openings of new schools early in the 1970’s and the general decline in school enrollment throughout the district and the city. In those early 1970’s the actions of the Board members in approving rezonings and a new school appeared to have been taken for the legitimate object of coping with overcrowding. The composition of the District 28 Board was different in the early seventies than it was in 1978. It would therefore be unjustifiable retroactively to attribute to the earlier Board members improper motives because, at least in part, the motives of the Board in 1978 in opposing the proposal of District 27 may have been impermissible. Cf. Dayton Board of Education v. Brinkman, 433 U.S. 406, 413-14, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977); Parent Ass’n of Andrew Jackson High School v. Ambach, supra, 598 F.2d at 709. The court has no basis for finding that the Board members in the early 1970’s had any particular gift for prophecy, and the immediate objective to relieve overcrowding was evidently so legitimate as to be generally acknowledged.

B.

Plaintiffs claim that the decision of the Board of District 28 to move the district office in 1980 from one location to another within Forest Hills rather than placing it in School 142 revealed an improper racial motive that reflects on the Board’s earlier actions. While a move of the district office to the school might have served to enhance, at least temporarily, the school’s image, it plainly would not have addressed the school’s critical need for additional students. By occupying significant space the location of the district office perhaps would have inhibited growth of the student body.

To some extent the failure to place the district office at School 142 may have been based on an improper and unwarranted fear in 1980 of entering the neighborhood at night. But for reasons already stated, that fact does not warrant an inference that earlier decisions that decisively contributed along with declining city and district enrollment to the underpopulation were made with improper motives.

C.

Plaintiffs note that the physical plant deteriorated over the years. But they did not show that this was significant in causing a lack of enrollment. Moreover, the proof did not show that School Í42 received at the hands of District 28 a disproportionately low allocation of money with which to maintain the school and its programs. In fact over the years the District 28 Board allocated to School 142 funds beyond those to which it would have been entitled on a per capita basis. The deterioration of the physical plant thus appears to have been the result of rather than the cause of the underpopulation.

D.

Plaintiffs suggest that the failure for a period of years to appoint a permanent principal for School 142 shows that defendants discriminated against it for racial reasons. Apparently the school had a series of acting principals from 1970 until about 1978. There is nothing in the record to explain why this occurred or to show whether a similar condition existed at other schools in District 28. A shifting administration undoubtedly was detrimental to the school, but it can hardly have contributed in any substantial way to the serious underutilization that was the basis of the school’s chief difficulties.

E.

The record does not support the accusation that the District 28 Board did nothing to address the problem of student enrollment. Perhaps the board could have done more, and certainly its efforts did not bear substantial fruit. Moreover, some efforts were frustrated by circumstances plainly beyond the school’s control, such as the city budget reductions of 1975, and there was inevitably more talk than action.

The court has considered the evidence as to each of the proposals advanced for increasing utilization of the school and the testimony of the Superintendent as to the actions taken to try to implement those proposals. Maybe defendants could have taken more effective steps. But the evidence does not justify an inference that the defendants failed to do so with the racial motive to bring about the closing of a black school.

VIII

The record in this case reveals one small part of a tragedy, the closing of a school in a thriving community. But under existing decisions this court can order remedial action only if the closing resulted from discrimination by officials on the basis of race or color in violation of federal law. The record does not justify such a finding. The officials acted to alleviate overcrowding when they initiated in the early 1970’s the rezonings and school openings that were, along with a general decline in the city’s school population, the critical reason for the school’s later loss of enrollment. There is nothing in the record to suggest that in those early 1970’s the forseeable impact would be the closing of a black school. Nor does the record support a finding that any or all of the other and later factors had a significant effect in causing the school to close. All of those other factors together are wholly insufficient to warrant an inference that in earlier years the officials rezoned or opened schools with intent to close a black school or with consciousness that such a result would follow. Cf. Hart v. Community School Board, 512 F.2d 37, 46, 51 (2d Cir.1975).

Several witnesses testified that in the city school system it was probable that the more able students were applying for various reasons to go to schools outside their neighborhood. Neighborhood schools thus felt a drain not just in numbers but in student ability. An important aspect of a pupil’s education is the stimulation and example of other pupils. A school that loses student talent gives, to that extent, a less desirable education. A logical educational policy would seem to require a corresponding increase in effort in other ways to compensate for the loss of that talent. Otherwise a few pupils receive advantages at the expense of the many. There is no showing that the Chancellor and the City Board made studies of this or developed facts to reveal the scope of the problem for a school like School 142.

The integration policy is admittedly race conscious, and one of the conditions for its approval would seem to be an affirmative effort to mitigate the loss to the black schools of numbers and talent. Cf. Local Union No. 35 of the International Brotherhood of Electrical Workers v. Hartford, 625 F.2d 416, 421 (2d Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). As noted above, the Court of Appeals has upheld the integration policy after weighing what it considered the relevant conflicting interests, and it is not for this court to conclude in this case that the Court of Appeals did not strike the proper balance. In any event, the critical causes leading to the eventual closing of School 142 were not the various options allowed to students but the rezonings and school openings of the early 1970’s and the general decline in school enrollment.

The foregoing constitutes the court’s findings of fact and conclusions of law.

The complaint is dismissed. So ordered.


source: Caselaw Access Project

author: WEXLER, District Judge.

license: Public Domain

text:
    Guy RUSSO, Plaintiff, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.
    No. CV 83-3616.
    United States District Court, E.D. New York.
    Jan. 15, 1986.

      Binder & Binder by Charles E. Binder, Hauppauge, N.Y., for plaintiff.
    Raymond J. Dearie, U.S. Atty. by Kiyo A. Matsumoto, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiff Guy Russo appealed to this Court for review of a determination of the Secretary of Health and Human Services (Secretary) that denied his application for Social Security disability benefits. 42 U.S.C. § 405(g). Mr. Russo suffered injury to his back in a fifteen foot fall while working as a billboard installer, and claimed that the resulting pain and physical impairments left him unable to work. On review the Court determined that the Secretary’s decision that plaintiff retained the residual functional capacity to perform sedentary work was not supported by substantial evidence on the record as a whole. Accordingly, the Court reversed the Secretary’s determination and awarded disability benefits.

Counsel for plaintiff now applies for an award of attorney’s fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and the section of the Social Security Act that provides for an award of counsel fees from 25% of plaintiff’s past due benefits. 42 U.S.C. § 406(b)(1).

The award of fees under the EAJA shifts the cost of pursuing a meritorious claim .against a federal agency to the government. Specifically, if the private party prevails in the litigation and the government does not show that its position was substantially justified, an award of fees against the government is appropriate. 28 U.S.C. § 2412. Aside from these statutory requirements, however, courts in the Second Circuit require contemporaneous attorney work records to support an application for EAJA fees. New York State Association for Retarded Children v. Carey, 711 F.2d 1136, 1147 (2d Cir.1983). Counsel has failed to submit such documentation. Therefore, even though plaintiff is the prevailing party and the Court does not believe the government’s position on appeal was substantially justified, the Court cannot award fees under the EAJA.

Counsel for plaintiff also applies for fees under 42 U.S.C. § 406(b)(1), and asks for award of the full 25% of past due benefits based on a contingency fee agreement signed by Mr. Russo, a copy of which is attached to the application. The Court will not enforce contingency fee agreements by way of a § 406(b)(1) award of fees. Penny v. Heckler, 623 F.Supp. 1240, 1243, (E.D.N.Y.1986); Modica v. Secretary of Health and Human Services, 581 F.Supp. 39, 40 (E.D.N.Y.1984). Rather, it is for the Court to fix a fee based on an evaluation of the hours of work and skill required of the practitioner. McKittrick v. Gardner, 378 F.2d 872 (4th Cir.1967).

The Secretary calculates plaintiff’s past due benefits as $23,684.00. Twenty-five percent of past due benefits amounts fo $5,921.00. Counsel submitted a “Schedule of Hours Spent in Federal Court” with the petition for an EAJA fee award showing 25V2 hours of work performed on plaintiff’s case. The Court recognizes that plaintiff’s counsel is a leading practitioner in the disability field, possessing a high level of skill and experience. Accordingly, the Court finds the 25V2 hours of work performed reasonable and an hourly rate of $125.00 reasonable under the circumstances, for a total award of $3,125.00 under 42 U.S.C. § 406(b)(1). Counsel shall not seek further compensation under the contingency fee agreement signed by Mr. Russo for work performed before this Court.

Nevertheless, the Court finds it unfortunate that counsel’s argument for an award of EAJA fees was not successful. Counsel’s memoranda of law on the issue were brief and there were no supporting contemporaneous work records. The Court cannot award EAJA fees without contemporaneous records. Sadly, it is the plaintiff who suffers the hardship when counsel fails to keep the records required. Usually, an attorney will get his fees from claimant’s past due benefits if the EAJA application is denied. This has been a period of transition as the courts began applying the Carey decision to work performed after the June 15, 1983 date of that opinion. Understandably, attorneys were not immediately aware of the Carey decision. Enough time has passed since Carey that from now on attorneys should preserve their clients’ rights under the EAJA and keep the required contemporaneous records of work performed. The Court has made clear that it will not enforce contingency fee agreements in these disability cases. The Court perhaps should next address the problem of counsel who fail to keep the contemporaneous records necessary for their clients’ to recover EAJA fees.

The Clerk of the Court is hereby directed to award attorney’s fees under 42 U.S.C. § 406(b)(1) to plaintiffs counsel in the amount of $3,125.00.

SO ORDERED.


author: BLUMENFELD, Senior District Judge.

text:
    Rose Mary HALL, Administratrix of the Estate of Powell Oscar Hall, and Rose Mary Hall, Individually v. ASHLAND OIL CO. a/k/a Ashland Chemical Co. and XYZ Companies.
    Civ. No. H-81-600 (MJB).
    United States District Court, D. Connecticut.
    Jan. 15, 1986.

      Matthew S. Shafner, Peter J. Bartinik, O’Brien, Shafner, Bartinik, Stuart & Kelly, Groton, Conn., for plaintiff.
    John J. Bogdanski, Hadleigh H. Howd, H. Franklin Hostetler, III, Jill A. Hanau, Howd & Ludorf, Hartford, Conn., for defendant.
   RULING ON MOTION FOR SUMMARY JUDGMENT

BLUMENFELD, Senior District Judge.

This product liability claim arises out of the exposure of plaintiff’s decedent, Powell-Oscar Hall, to benzene allegedly manufactured and sold by the defendant to the decedent’s employer. The plaintiff, Rose Mary Hall, brought action as administratrix of her husband’s estate and on her own behalf, seeking damages for his personal injury and death, punitive damages, and damages for loss of consortium. Her complaint is based upon theories of strict products liability, negligence, and breach of warranty for failure to test the product, warn of its dangers, or instruct as to its safe use. The defendant, Ashland Oil, Inc., is a Kentucky corporation which sold benzene to Pfizer, the decedent’s employer.

Ashland has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(b), claiming that there are no issues of material fact in dispute and that it is entitled to judgment as a matter of law. Ashland’s argument, in capsule form, is that a manufacturer is not required to warn the employees of its industrial customers of dangers associated with its products where the customer is a knowledgeable user. Both parties have submitted briefs supported by affidavits and deposition testimony. Oral argument was heard on the motion on October 29, 1985.

Summary Judgment

Under Federal Rule of Civil Procedure 56(b) “[a] party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” Subsection (c) provides that the judgment sought shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c).

The party opposing summary judgment must set forth some specific facts showing that there is a genuine issue for trial. Fed. R. Civ.P. 56(e); Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.1972). The burden, however, is on the moving party to demonstrate the absence of any genuinely-disputed issues of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Hayden Publishing Co., Inc. v. Cox Broadcasting Corp., 730 F.2d 64, 68 (2d Cir.1984). The facts are to be viewed in the light most favorable to the non-moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); and any ambiguities or inferences to be drawn from the facts must be resolved in favor of the non-moving party. United States v. One Tinteretto Painting Entitled “The Holy Family with Saint Catherine and Honored Donor”, 691 F.2d 603, 606 (2d Cir.1982).

On a motion for summary judgment, the court’s role is to determine whether issues remain to be tried, and not to try issues of fact. Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975); American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir.1967), cert. denied, 404 U.S. 1063, 92 S.Ct. 737, 30 L.Ed.2d 752 (1972). Summary judgment is a convenient device for disposing of a case efficiently when there are not significant issues of fact to be tried. American Mfrs. Mut. Ins. Co., 388 F.2d at 278. At the same time, it is a drastic measure that deprives the opposing party of the chance to present its case to a jury. Heyman, 524 F.2d at 1320; Donnelly v. Guion, 467 F.2d at 291. For this reason, a motion for summary judgment should be considered with prudence and should not be granted unless the moving party clearly meets its burden of showing the absence of any genuine issue of fact. See Adickes v. S.H. Kress & Co., 398 U.S. at 153, 90 S.Ct. at 1606.

Applying these well-established principles to this motion, the court must interpret the facts presented in the affidavits and pleadings of the parties in the light most favorable to the plaintiff. Ashland has the burden of demonstrating that no genuine issues of material fact remain to be tried and that, as a matter of law, there is no possibility that the plaintiff could prevail. Because plaintiff has raised substantial unresolved issues of material fact, as discussed below, Ashland has not met its burden and the motion for summary judgment will be denied.

Facts

Many elements of the scenario underlying this claim appear to be undisputed. From 1970 until 1980 the decedent was employed by Pfizer, Inc., a chemical and pharmaceuticals manufacturer. During most of that period Hall worked as a chemical operator in the Ascorbic section of Building 123 at Pfizer’s Groton plant. Pfizer used benzene as a solvent in the manufacture of bulk pharmaceutical products. Although benzene was not used in the Ascorbic department where Hall worked, it was used in the Organics II department which was located in the same building.

Ashland Oil is a manufacturer and distributor of petrochemicals, including benzene, a substance found in the natural environment. From 1972 to 1977 Pfizer purchased benzene from Ashland. Ashland delivered the benzene in bulk liquid form to Pfizer in 4,000 gallon tank trailers. At the Groton plant, the benzene was piped from the trucks into storage tanks located at the side of Building 123.

Hall died of leukemia on October 1, 1980. His widow claims that his leukemia was caused by exposure at the Pfizer plant to benzene supplied by Ashland.

Discussion

Ashland’s motion for summary judgment focuses on the question of whether it breached a duty to warn of the risks associated with its product. Ashland argues that there is no claim that the benzene, a natural substance, was improperly manufactured or contaminated, and that the only thing that could render it defective would be a breach of a duty to warn. This approach to the problem is supported by comment k to § 402A of the Restatement (Second) of Torts, which discusses “unavoidably unsafe products”:

There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use____ Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. [Emphasis in original.]

See also Basko v. Sterling Drug, Inc., 416 F.2d 417 (2d Cir.1969) (applying Connecticut law).

From this point, Ashland goes on to claim that in the circumstances of this case it satisfied any duty to warn and is therefore entitled to judgment as a matter of law. Ashland’s theory is based upon the “learned intermediary” and “knowledgeable user” exceptions to the duty to warn. The manufacturer argues that where “a bulk product is sold to a skilled industrial user which is familiar with the risks attendant thereto and which totally controls its use, the manufacturer’s duty to warn is limited, as a matter of law, to the learned or informed intermediary, and not to an employee thereof.” Memorandum of Law in Support of Motion for Summary Judgment at 10. In addition, the argument continues, the skilled industrial user is held to the standard of an expert concerning the products it uses in its manufacturing processes, and therefore is a knowledgeable user to whom no warning is necessary. The bottom line is that Ashland claims that it could satisfy its duty to warn in this case without actually furnishing any warning, and therefore that it could not have breached any such duty.

Ashland’s contention involves the application of several legal arguments. Dissected into its component parts, it asks the court to hold as a matter of law that: (1) the only ground for holding Ashland liable is a failure to warn; (2) when a product is sold in bulk to an industrial user for use by its employees the supplier’s duty to warn extends only to the employer as a learned intermediary and not to the users; (3) a manufacturer such as Pfizer can be held to the knowledge of an expert as to all of the risks associated with each of the components involved in its manufacturing processes; and (4) a supplier’s duty to warn an industrial purchaser of risks to its employees is excused where the purchaser is held by law to know of the risks independently. If any one of these legal arguments is rejected, Ashland’s theory falls apart. In this case, the applicability of each of these legal assumptions is open to serious doubt. The most troublesome are the learned intermediary and knowledgeable user doctrines, especially when combined in this way.

a. Learned intermediary

The learned intermediary theory developed in the area of prescription drugs, where courts have held that a manufacturer can fulfill its duty to warn by supplying an adequate warning to the medical profession concerning risks attendant upon use of a drug. Basko v. Sterling Drug, Inc., 416 F.2d 417 (2d Cir.1969) (applying Connecticut law); Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir.1968) (Montana law); Goodson v. Searle Laboratories, 471 F.Supp. 546 (D.Conn.1978) (Connecticut law). These decisions reflect the unique circumstances that surround the dispensing of prescription drugs and which make a warning to the medical profession an appropriate and reliable means of fulfilling the duty to warn the ultimate users.

The selection of medication for a patient “is essentially a medical [decision] involving an assessment of the medical risks in the light of [the] patient’s needs and susceptibilities.” Davis, 399 F.2d at 130. In a practical sense, a doctor is a necessary intermediary because only a physician has the training and knowledge to make an initial determination as to the appropriateness of a given drug to a patient’s condition. The doctor is also a necessary intermediary in a legal sense in such cases, because consumers cannot obtain prescription drugs without a doctor’s order. See Kirsch v. Picker International, 753 F.2d 670, 671 (8th Cir.1985) (recognizing significance of fact that x-ray equipment, like drugs, is available only to qualified professionals). In addition, a physician has a fiduciary relationship with a patient. Ideally, the doctor truly “acts as an ‘informed intermediary’ between the manufacturer and the patient, evaluating the patient’s needs, assessing the risks and benefits of the available drugs, prescribing one, and supervising its use.” Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87, 91 (2d Cir.1980). Finally, on a practical level, courts have recognized that it is difficult for a manufacturer to reach the ultimate consumer of prescription drugs directly with a warning, and that therefore a warning to the medical profession is the “only effective means by which a warning could help the patient.” Davis, at 130; Basko, at 426.

The validity of applying the learned intermediary doctrine in the area of employer/employee relationships is far from self-evident. It is true that some of the same considerations are present, the most important being the difficulty of warning the direct users of a chemical that is supplied in bulk to an industrial purchaser for its use in manufacturing processes. The purchaser/employer may well be in a better position to warn the user/employee than is the manufacturer.

It is important to recognize, however, that the medical context contains significant safeguards to the ultimate user that are not present in the industrial workplace. In its brief, Ashland equates the relationship between Pfizer and its employees with the doctor/patient relationship, claiming that Pfizer acts as an informed intermediary between its benzene suppliers and its chemical workers by using its own technical expertise to evaluate its manufacturing needs, assessing the risks and benefits of available chemical solvents, selecting one and supervising its use. Memorandum of Law in Support of Motion for Summary Judgment at 22.

Despite this carefully-constructed parallel, important distinctions leap to mind. First, unlike the doctor, whose primary purpose in selecting a drug is to promote the well-being of the ultimate user, the industrial purchaser’s basic interest in selecting a chemical solvent is the overall utility of that solvent in its manufacturing processes. While avoiding health risks to its employees is a consideration that goes into choosing one chemical over another, it is not the employer’s sole concern, or even its primary focus. Second, there is no guarantee that the ordinary industrial employer is an expert on health risks. A chemical company may be in a position to act as an expert concerning the industrial uses and disadvantages of a chemical and yet not have the capacity to serve adequately as a learned intermediary concerning medical risks associated with the chemical. Third, the marketing system for industrial chemicals differs from that of prescription drugs — benzene and other chemicals are not subject to the strict limitations on availability that apply to drugs. Although benzene was sold to a large industrial purchaser in this case, it can also be sold to ordinary consumers. Even in a case involving a prescription drug, the learned intermediary concept has been disregarded where the safeguards of the usual distribution process do not exist. Davis, 399 F.2d at 130-31 (in case of polio vaccine which was denominated a prescription drug but was not dispensed as such, warning by manufacturer to its immediate purchaser did not suffice). Fourth, the relationship of doctor and patient is a one-on-one relationship where the doctor assesses the individual needs of each patient. The facts of this case illustrate the difference in the industrial workplace, where a chemical that is used may affect large numbers of people, including those who do not work with it directly. Even an employer who is aware of direct effects of the chemical maybe unaware of more subtle or diffuse risks. Finally, the prescription drug cases, in relieving manufacturers of the duty to warn drug users, shift that duty on to a party who can be held legally liable to the patient for failing to fulfill it. This powerful incentive is absent in the case of an employer whose liability is limited by the exclusive remedy provisions of the workman’s compensation statutes.

Even if the learned intermediary theory were to be applied to cases involving sales of bulk chemicals in the industrial workplace, that theory alone would not relieve Ashland of a duty to warn. The prescription drug cases merely shift the direction that such a warning must take, by requiring the manufacturer to provide an adequate warning to the intermediary. Basko, 416 F.2d at 426; Davis, 399 F.2d at 130; Kirsch, 753 F.2d at 672 (dissent) (manufacturer of x-ray machine had no duty to warn patient, but was required to warn the doctor adequately).

The evidence provided by plaintiff in opposition to this motion suffices to establish a genuine issue of fact as to whether Ashland provided adequate warnings to Pfizer. Plaintiff has submitted deposition testimony of Pfizer employees that the first information that Pfizer received from Ashland concerning the dangers of benzene was a Material Safety Data Sheet (“MSDS”) that Ashland sent to Pfizer on January 12, 1977. Ashland has not presented evidence that it transmitted warnings earlier. Although it has submitted a copy of a MSDS dated 1975, it is not clear when such a MSDS was sent to Pfizer. Since the decedent was employed at Pfizer from 1970 to 1980, and Ashland supplied benzene to Pfizer from 1972 to 1977, plaintiff’s evidence suggests that it could be found -that throughout most of the period of decedent’s alleged exposure, Ash-land did not warn Pfizer concerning benzene. In view of this testimony, the court could not hold as a matter of law that Ashland adequately warned Pfizer. The adequacy of a warning is a question of fact for the jury. See Billiar v. Minnesota Mining and Manufacturing Co., 623 F.2d 240, 246 (2d Cir.1980) (applying New York law).

b. Knowledgeable user

To get past the issue of the adequacy of warnings to the intermediary, Ashland interjects the knowledgeable user exception to the duty to warn as an extension of the basic informed intermediary theory. In tort law, one with a duty to warn is not liable for failing to warn a party of facts that the party already knew. Lindsay, 637 F.2d at 92; Billiar, 623 F.2d at 243. The theory of this exception is that a failure to warn a party of a danger of which it was independently aware cannot be the proximate cause of injury resulting from that danger, since presumably the party would not have acted differently even if warned. Kirsch, 753 F.2d at 671 (failure to warn doctor was not proximate cause of plaintiff’s injury if doctor was already aware of the cancer risks associated with radiation therapy).

Again, the applicability of this exception to a case such as the present one is questionable. As plaintiff points out, knowledge of a risk is not necessarily the same thing as knowledge of the extent of the risk. Cf. Billiar, at 247 (criticizing “dubious” notion that a party will act the same way regardless of whether the risk of which it is aware is large of small). This distinction militates strongly against the defendant’s argument that an industrial employer should be held to the knowledge of an expert concerning all of the components of its manufacturing processes and that that imputed knowledge should be enough to cut off the duty of the manufacturer of the components to warn of risks associated with their use, particularly when it is the ultimate users who must bear those risks.

Other courts have refused to accept the theory that the fact that bulk sales of natural materials are made to industrial purchasers who might be termed “knowledgeable users” should insulate the manufacturers of the materials from any duty to warn. See Whitehead v. Saint Joe Lead Co., Inc., 729 F.2d 238 (3d Cir.1984) (no summary judgment for lead manufacturer on theory that it sold lead to employer who was knowledgeable user and that dangers of lead were well known; applying New Jersey law); Oman v. Johns-Manville, 764 F.2d 224 (4th Cir.), cert. denied, - U.S. -, 106 S.Ct. 351, 88 L.Ed.2d 319 (1985) (no error in refusal to instruct jury that the fact that the plaintiffs employer was a sophisticated user cut off the manufacturer’s duty to warn).

Even if this legal theory were applied, however, coupled with the learned intermediary theory, serious factual issues remain to be resolved. Plaintiff contests vigorously the defendant’s claim that Pfizer is an expert with respect to benzene and the health risks attendant to its industrial use. Unless Ashland can establish as a matter of fact that Pfizer knew of these risks or had sufficient expertise to be charged by law with knowledge of them, Ashland has no theory that would justify a failure to warn either Pfizer or its employees. The factual basis to support its legal theory has not been made out at this point.

c. Issues of material fact

As discussed above, the legal theory that Ashland proposes in support of its claim to judgment as a matter of law contains several serious weaknesses. Accepting that theory in its entirety for the moment, however, solely for purposes of this motion for summary judgment, it is clear that Ashland’s motion must be denied. Even if the court were to follow Ashland’s theoretical lead every step of the way, significant unresolved factual issues remain.

Although the evidence is not crystal clear (as deposition testimony rarely is), plaintiff has provided enough evidence to support its contention that the question of Pfizer’s knowledge of the health dangers of benzene or its status as a “knowledgeable user” are matters open to dispute. Plaintiff cites deposition testimony of several Pfizer employees, including Ralph Gifford who, during the decedent’s employment, was Operations Manager for Groton Quality Control Operations, Department Manager for the Organics II and Ascorbic Departments, and Director of Regulatory Affairs for the chemical division of Pfizer; Robert Dray, an engineering and safety aide who did benzene testing in 1976 and 1977; and others. This deposition testimony supports the claim that for at least some of the relevant period Pfizer did not have knowledge of the health risks of benzene and that a manufacturer’s warning would have caused the company to act differently. There is testimony that although Pfizer had a technical review committee composed of experts within the company “to provide interpretation of technical publications with regard to toxicity of materials,” (Gifford Deposition at 86), it did not come into being until 1976 (Gifford Deposition at 85). Depositions indicate that prior to a study by the National Institute for Occupational Safety and Health in 1976, and the decision of the Occupational Safety and Health Administration to lower the threshold limit value for benzene in that same year, Pfizer’s only source for acceptable benzene levels was a set of guidelines in a publication of the American Conference of Governmental Industrial Hygienists (ACGIH). (Gifford Deposition at 89-90). As plaintiff points out, these ACGIH guidelines are not in evidence and their sufficiency as a basis for holding Pfizer to have had knowledge of the risks cannot be assessed on this motion.

There is evidence that if Pfizer had known of the risks it would have acted differently. Pfizer employees testified that many suppliers sent the company information concerning their products and that such information was taken seriously. (Gifford Deposition at 49). There is evidence that at the point at which Pfizer’s awareness of the risks was allegedly activated by the NIOSH study, it did in fact take action. For instance, there is testimony that in 1976 Pfizer’s Chemicals in the Workplace Program became more formalized (Gifford Deposition at 87); the technical review committee was started (Gifford Deposition at 85), and the company began eliminating benzene from its processes (Gifford Deposition at 59).

There is also some evidence, discussed above, that Ashland did not provide a timely or adequate warning to Pfizer. Plaintiff points to testimony that the first information Pfizer received from Ashland concerning dangers of benzene was the MSDS sent in 1977.

The defendant has submitted evidence suggesting that the level of sophistication at Pfizer concerning benzene was substantially higher than the plaintiff claims. This evidence takes the form of testimony from the Gifford and Tapley depositions and an affidavit of Alan Rossi, Administrative Manager of the Industrial Chemicals and Solvents Division of Ashland. It has also submitted opinions of the United States Supreme Court and the Fifth Circuit Court of Appeals in cases involving the government’s attempts to regulate benzene levels as evidence that the health risks of benzene have long been a matter of public record. The defendant’s evidence is certainly not conclusive, however; it merely establishes that there are genuine issues of fact as to these issues.

On a motion for summary judgment, the court must view the facts in the light most favorable to the non-movant. Accordingly, after resolving all ambiguities and drawing all inferences in favor of the plaintiff, it is evident that this is not a ease where the pleadings and evidence clearly show that plaintiff cannot establish any set of facts upon which it can recover. Rather, even on the legal theory that the defendant puts forward, the plaintiff has demonstrated that there are material issues of fact that remain in genuine dispute.

This is not to say that the defendant’s legal theory is completely without merit or that the plaintiff will not face substantial hurdles in proving its case before a jury. Neither of these propositions is sufficiently clear at this point and on this record, however, to justify foreclosing the presentation of the evidence to a jury for a finding of fact.

Conclusion

As discussed in the foregoing, plaintiff has adequately specified facts establishing that there remain genuine issues of material fact in dispute in this case and that defendant is not entitled to judgment as a matter of law at this point. For that reason, the motion of Ashland Oil for Summary Judgment is hereby denied.

SO ORDERED.

ADDENDUM

The many factual uncertainties involved in this case, as discussed in the foregoing, and the apparent absence of independent progress towards settlement between the parties suggest that resolution of the case might be facilitated by some form of court-assisted settlement attempt, such as the summary jury trial procedure which is currently being used to good effect. Such a procedure would serve to give each party a realistic perspective on the strengths and weaknesses of its case and on the risks and benefits of proceeding to trial. The parties are invited to respond to the suggestion of a summary jury trial in writing within ten days of the date of this ruling. The case, now scheduled for trial on January 22, 1986, will be assigned a new trial date thereafter.

      . The defendant relies heavily on Goodbar v. Whitehead Brothers, 591 F.Supp. 552 (W.D.Va.1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985). The authority of Goodbar, even in its own jurisdiction, is unclear. Only two months earlier, the Fourth Circuit Court of Appeals had held en banc in Oman that a district court did not err in refusing to instruct a jury that an asbestos manufacturer’s duty to warn the ultimate users, employees of its purchaser, was satisfied if the employer/purchaser was aware of the dangers involved in use of the product. 764 F.2d at 233. Oman and Goodbar rely upon the same Virginia cases and section 388 of the Restatement (Second) of Torts, yet they reach opposite conclusions and neither case cites the other.
      Another extremely significant consideration is that in Goodbar, the federal court was interpreting the law of Virginia, a state which has never adopted the doctrine of strict product liability. Goodbar, 591 F.Supp. at 555. The case before the court today is governed by Connecticut tort law, which explicitly recognizes strict product liability and has adopted section 402A of the Restatement (Second) of Torts. See, e.g., Garthwait v. Burgio, 153 Conn. 284, 289, 216 A.2d 189 (1965); Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 559, 227 A.2d 418 (1967). The fundamental difference in the approach that these two states take toward the liability of product manufacturers limits the relevance of Goodbar to this case.

      . Neither party has cited Connecticut law on these issues (with a few minor exceptions). The role of a federal court sitting in a diversity action is to apply the law of the forum state, not to blaze new legal trails for that state. This court cannot simply fashion a doctrine to cover the situation at hand by reference to opinions of other federal courts around the country, but must give careful consideration to the product liability law of the State of Connecticut and attempt to determine the law that the state courts would apply in this situation.


author: CAFFREY, Chief Judge.

text:
    Albert J. BLAKE, Plaintiff, v. Louis M. BERMAN, et al., Defendants.
    Civ. A. No. 82-3631-C.
    United States District Court, D. Massachusetts.
    Jan. 16, 1986.

      Albert J. Blake, pro se.
    Robert Canty, Gaston Snow & Ely Bartlett, Boston, Mass., for plaintiff.
    William D. Luzier, Jr., Asst. Atty. Gen., Boston, Mass., for defendants Michael Fair and Berman.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action brought pursuant to 42 U.S.C. §§ 1983 and 1985 by the plaintiff, Albert J. Blake, a Massachusetts state prisoner, against Louis M. Berman and Michael V. Fair, the former and present commissioners of the Massachusetts Department of Correction. The plaintiff alleges that his constitutional right of access to the courts was violated during the time he was incarcerated in the federal penitentiary system as a state contract prisoner. The matter is before the Court on the plaintiff’s motion for summary judgment on the issue of liability and the defendants’ motion for partial summary judgment pursuant to Fed.R.Civ.P. 56.

To prevail on a motion for summary judgment, the moving party must show that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The evidence must be viewed in the light most favorable to the opposing party. Id. The parties in this case have submitted a statement of agreed facts.

In March of 1976, plaintiff was sentenced to serve a term of years in the Massachusetts Correctional Institution at Walpole. He was transferred to federal custody in-September of 1980, and subsequently became a state contract prisoner in the United States Penitentiary at Leavenworth, Kansas (“Leavenworth”). While at Leavenworth, the plaintiff requested Massachusetts law books from the prisoners’ law library, and was informed that there were none. He was told that the Massachusetts Department of Correction was responsible for providing him access to the courts. The plaintiff then wrote a series of five letters to the defendants Berman and Fair requesting Massachusetts law books. He finally received an answer from defendant Fair which denied his request and suggested that the plaintiff maintain access to the courts through the Massachusetts Correctional Legal Services, the Kansas University Defender Program, or the Leavenworth County Library System. The plaintiffs subsequent requests for Massachusetts law books from the first two of these resources and from others suggested by the Massachusetts Department of Correction in Corgain v. Miller, 708 F.2d 1241, 1248 n. 8 (7th Cir.1983) were unsuccessful. During the time he was at Leavenworth, the plaintiff had several cases pending in the United States District Court for the District of Massachusetts and one in the Massachusetts state court. In addition, the plaintiff had declared his intention to file a petition for post conviction relief. The plaintiff was returned to the Massachusetts state correctional system on December 17, 1982.

It is established law that prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). Prison authorities must provide inmates with “adequate, effective, and meaningful” access to the courts by providing prisoners either with law libraries or with assistance in the preparation and filing of meaningful legal papers from persons trained in the law. Id. at 822, 828, 97 S.Ct. at 1495, 1498. Adequate law libraries are only one acceptable means of fulfilling this constitutional mandate. Id. at 830, 97 S.Ct. at 1499. Other alternative means may suffice. Id. at 831, 97 S.Ct. at 1500. Each plan for access to the courts must be evaluated as a whole to determine if it complies with constitutional standards. Id. at 832, 97 S.Ct. at 1499.

When a legal access is challenged, the government has the burden of proving that the inmate has been provided with adequate law libraries or legal assistance. Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir.1981). State corrections officials retain responsibility for providing research and legal assistance to state prisoners transferred to federal custody. Id. at 43.

There is no question that the law library at Leavenworth, which did not contain Massachusetts law books, did not by itself provide state prisoners with sufficient access to the Massachusetts state courts. See Corgain v. Miller, 708 F.2d at 1250. Although the plaintiff in this case clearly sought law books rather than legal assistance, corrections officials can fulfill their constitutional responsibility by providing legal assistance only. E.g., United States v. Wilson, 690 F.2d 1267, 1272 (9th Cir.1982) cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983). There is no duty to provide prisoners with state law libraries if they choose not to avail themselves of adequate alternative services. Corgain v. Miller, 708 F.2d at 1250. The issue before the Court, therefore, is whether the defendants provided the plaintiff with adequate legal assistance while he was incarcerated in Leavenworth from December 16, 1980, to December 17, 1982.

The defendants rely primarily on the existence of the Kansas Defender Project (“the Project”) to support their contention that the plaintiff had access to legal assistance. The record shows that the Project is a clinic program run by the University of Kansas School of Law. The purpose of the project is to enable students to gain experience by providing legal assistance to prisoners incarcerated in Leavenworth and local state institutions. Upon receipt of a completed formal application from a prisoner, the Project staff reviews the material to determine whether or not the inmate has a legally remediable claim. If he does, then the staff prepares documents for the prisoner and attempts to get counsel appointed to the case. Requests involving money damages are not usually handled. When the Project receives a completed application, an inmate is placed on a waiting list, unless it is an emergency situation, and an effort is made to at least interview each inmate. There can be a substantial delay before an inmate receives a visit from a staff member. On October 1, 1981, for example, thirty-two inmates were on the waiting list.

I rule that the existence of the Kansas Defender Project does not by itself provide adequate access to the courts for Massachusetts state prisoners in federal custody at Leavenworth. When prison officials choose to rely solely on trained legal assistance to fulfill the constitutional mandate detailed in Bounds, aid must be available in the preparation of the initial pleadings in habeas corpus and civil rights suits. Nordgren v. Milliken, 762 F.2d 851, 854-55 (10th Cir.1985). This means that those providing the legal assistance cannot interpose a screening process between the inmate and courts at that stage. Id. at 855. The record shows that such a screening process exists at the Project. In addition, there must be some assurance that all inmates requesting assistance receive it. The record does not show that such is the case with the Project. Although the Project apparently provides what legal help it can to inmates at Leavenworth, its resources are necessarily limited by the nature of its purpose and program. The Project does not have a contract with the Massachusetts Department of Correction to provide legal assistance to Massachusetts state prisoners, and cannot be expected to do so in all instances. In this case, although the Project has no record of it, the plaintiff avers that he completed and returned an application to the Project, but never received an interview. According to the plaintiff, at that time he was in the process of initiating a post conviction appeal of his sentence and also civil litigation concerning the award of “earned good time” for inmates under a Massachusetts state statute.

Following defendant Fair’s suggestion, the plaintiff also contacted Massachusetts Correctional Legal Services and requested Massachusetts law books. Although the plaintiff did not request legal assistance, there is nothing before the Court to indicate that this organization supplies legal help to prisoners housed outside of Massachusetts. In fact, the organization specifically told the plaintiff that the Massachusetts Department of Correction was responsible for providing him with access to the courts. The defendants have not asserted that the third resource recommended by defendant Fair, the Leavenworth County Library System, provides adequate access to the Massachusetts courts and therefore, for the purposes of this motion, I assume it does not.

I note that the plaintiff also contacted the legal resources recommended in an affidavit submitted by the General Counsel to the Massachusetts Department of Correction in another federal case involving Massachusetts state prisoners transferred to federal custody, Corgain v. Miller, 708 F.2d at 1241. The finding by the Court of Appeals for the Seventh Circuit that this list of legal resources constituted a facially adequate plan to provide Massachusetts state prisoners in federal custody with access to the courts is not dispositive in this case. What is at issue here is the adequacy of access in fact.

From the responses received by the plaintiff, it is clear that when the list was compiled, no effort was made to ascertain whether or not the organizations cited were capable of assisting Massachusetts prisoners incarcerated out-of-state. For example, replies to the plaintiff’s inquiries indicate that the Northeastern University Prisoners’ Assistance Project and the Prisoner’s Legal Assistance Clinic do not represent Massachusetts prisoners who have been transferred into the federal system. Moreover, the supervising attorney for the Prisoner’s Legal Assistance Clinic, which is staffed by students at the Western New England College School of Law, stated that no one from the Massachusetts Department of Correction had ever contacted the clinic to determine if it could or would represent out-of-state prisoners.

I rule that the defendants have not sustained their burden of proving that they are entitled to a judgment in their favor as a matter of law. The defendants’ motion for partial summary judgment should be denied.

Turning to the plaintiff’s motion for summary judgment, I rule that it should also be denied. Although the record shows that the plaintiff could not obtain law books from any of the legal resources he contacted, it does not clearly show that the organizations could or would not provide him with legal assistance. Moreover, the plaintiff states that he was represented by counsel in the cases he had pending in the Massachusetts courts while he was incarcerated at Leavenworth. There is no indication that these counsel would not have provided the plaintiff with legal assistance in preparing the initial pleadings for the litigation he wished to commence if he had so requested.

Order accordingly.

      . The legal resources listed were the Massachusetts Correctional Legal Services, Massachusetts Defenders Committee, Harvard Prisoner Legal Assistance Project, Northeastern University Prisoners’ Assistance Program, Prisoner Legal Assistance Clinic, United States District Court appointments, state court appointments, and County Programs: Deer Island Legal Services. Corgain v. Miller, 708 F.2d at 1248 n. 8. It is unclear how the plaintiff obtained this list since the case was decided in May of 1983 and the plaintiff apparently contacted the organizations in February of 1982.


author: JUNE L. GREEN, District Judge.

text:
    NATIONAL RURAL LETTER CARRIERS’ ASSOCIATION, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
    Civ. A. No. 85-2032.
    United States District Court, District of Columbia.
    Jan. 16, 1986.
    William B. Peer, David Jonathan Cohen, Barbara L. Camens, Barr & Peer, Washington, D.C., for plaintiff.
    Scott T. Kragie, Asst. U.S. Atty., Alice L. Covington, Office of Labor Law, U.S. Postal Service, Washington, D.C., for defendant.
   OPINION

JUNE L. GREEN, District Judge.

The National Rural Letter Carriers’ Association (“Union”) took to arbitration the firing of an auxiliary rural letter carrier, Mark A. Schwartz, by the United States Postal Service (“USPS”). On May 27, 1985, Arbitrator Marshall J. Seidman ordered the USPS to reinstate Mr. Schwartz. The USPS has refused to comply with this order. Now before the Court are cross-motions for summary judgment. Plaintiff seeks a judgment enforcing the arbitration decision, while defendant seeks a judgment vacating the arbitrator’s award. For the reasons stated below, the Court grants the plaintiff’s motion for summary judgment and orders that the arbitration award be enforced.

I. Statement of Facts

Mark A. Schwartz was employed by the USPS as a rural letter carrier for approximately four years. Mr. Schwartz is a member of the Union which is the collective bargaining representative of some 67,000 rural letter carriers employed by the USPS. The Union negotiated and executed a collective bargaining agreement with the USPS in 1981. Plaintiffs Statement of Material Facts As To Which There Is No Genuine Issue (“Plaintiff’s Statement”) ¶¶[ 1, 2, 4, 5.

On November 28, 1984, Mr. Schwartz was fired from his position as an auxiliary letter carrier for the Bartonville, Illinois, Post Office. His removal stemmed from his arrest on August 16, 1984, and subsequent indictment for the offense of aggravated criminal sexual abuse of a minor, his adopted daughter. On October 15, 1984, an Illinois circuit court dismissed the charge because Mr. Schwartz entered a voluntary deferred prosecution program which provided that he seek counseling and pay a fine. The USPS initially suspended Mr. Schwartz indefinitely due to these charges, and later decided to terminate his employment. Defendant’s Statement of Material Facts As To Which No Genuine Issue Exists (“Defendant’s Statement”) ¶¶ 4, 5, 9, 10, 11, 12, 13.

Pursuant to Article 15 of the National Agreement between plaintiff and defendant, grievances were filed contesting Mr. Schwartz’s suspension and removal. Defendant’s Statement ¶ 14. The USPS agreed to arbitration and participated in it. An arbitration hearing was held on April 19, 1985. Plaintiff’s Statement ¶¶ 14, 16.

In his May 27, 1985, Opinion and Award, the arbitrator concluded that the USPS violated Article 16 of the National Agreement because the branch manager of the Barton-ville, Illinois, office made no independent judgment and gave no consideration to the proper penalty for the grievant’s actions but simply accepted the recommendations made to him by the Management Sectional Center without any independent evaluation. Upon the basis of this procedural violation, the arbitrator ordered Mr. Schwartz reinstated without back pay. Id. ¶ 19. The arbitrator acknowledged that Mr. Schwartz had been indicted for a crime, that this crime arguably was a crime for which discipline could be imposed, that there was no question of fact as to the criminal act because it was based upon Mr. Schwartz’s admission, and that his arrest was publicized. Id. ¶ 20.

II. Conclusions of Law

A. Courts’ Deference to Arbitration

It is a basic tenet of Federal labor policies that collective bargaining and labor arbitration are much favored. Congress stated, “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement.” 29 U.S.C. § 173(d). Congress extended these policies to labor relations with the USPS in the Postal Reorganization Act of 1970, “Collective bargaining agreements between the Postal Service and bargaining representatives ... may include ... procedures culminating in binding third-party arbitration....” 39 U.S.C. § 1206(b).

The Supreme Court, in the Steelworkers Trilogy, acknowledged the importance of labor arbitration in the scheme of labor relations. See United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Supreme Court dealt specifically with the question of reviewing arbitral awards:

The refusal of the courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes would be undermined if courts had the final say on the merits of the awards.

United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. at 596, 80 S.Ct. at 1360. The Court reasoned that

[i]t is the arbitrator’s construction which was bargained for, and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.

Id. at 599, 80 S.Ct. at 1362.

In the present case, the Union sought and the USPS agreed to take the issue of Mr. Schwartz’s firing to arbitration. The parties proceeded under a valid collective bargaining agreement and no procedural error was alleged. While acknowledging the reluctance of courts to review the merits of an arbitration award, the USPS contends that the Court must vacate Arbitrator Seidman’s award because he exceeded the scope of his authority under the collective bargaining agreement. Defendant’s Motion for Summary Judgment at 4-5. Specifically, defendant urges the Court to vacate the arbitration award because it is contrary to public policy.

B. The “Public Policy Exception”

The courts have refused to enforce arbitration awards that are contrary to public policy. See, e.g., United States Postal Service v. American Postal Workers Union, 736 F.2d 822 (1st Cir.1984); Amalgamated Meat Cutters v. Great Western Food Co., 712 F.2d 122, reh’g denied, 717 F.2d 1399 (5th Cir.1983); American Postal Workers Union v. United States Postal Service, 682 F.2d 1280 (9th Cir.1982), cert. denied, 459 U.S. 1200, 103 S.Ct. 1183, 75 L.Ed.2d 431 (1983). The public policy exception is, however, a narrow one. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983); see also R. Gorman, Basic Text on Labor Law 593-98 (1976).

In the W.R. Grace case, an employer entered into a conciliation agreement with the Equal Employment Opportunity Commission to remedy past discrimination. Compliance with the agreement violated the seniority provision of the employer’s collective bargaining agreement, and resulted in layoffs in violation of the collective bargaining agreement. One arbitrator held the employer was not liable for back pay to laid-off employees because of the conciliation agreement. A second arbitrator held that he was not bound by the first arbitrator’s decision, and awarded other laid-off employees back pay. The employer argued that public policy forbade awarding back pay under the collective bargaining agreement when the employer was meeting its obligation under Title VII of the Equal Rights Act of 1964.

In upholding enforcement of the second arbitrator’s award, the Court stressed how carefully the public policy exception must be circumscribed.

[A] court may not enforce a collective bargaining agreement that is contrary to public policy. See Hurd v. Hodge, 334 U.S. 24, 34-35 [68 S.Ct. 847, 852-53, 92 L.Ed. 1187] (1948) ... [The second arbitrator’s] view of his own jurisdiction precluded his consideration of this question, and, in any event, the question of public policy is ultimately one for resolution by the courts. See International Brotherhood of Teamsters v. Washington Employers, Inc., 557 F.2d 1345, 1350 (C.A.9 1977) ... If the contract as interpreted by [the second arbitrator] violates some explicit public policy, we are obliged to refrain from enforcing it. Hurd v. Hodge, 334 U.S. at 35 [68 S.Ct. at 853] ... Such a public policy, however must be well defined and dominant, and is to be ascertained “by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Muschany v. United States, 324 U.S. 49, 66 [65 S.Ct. 442, 451, 89 L.Ed. 744] (1945).

W.R. Grace & Co. v. Local Union 759, 461 U.S. at 766, 103 S.Ct. at 2183.

In line with the W.R. Grace decision, the Court of Appeals for the District of Columbia has noted that "... reviewing courts have all too frequently explored the merits of arbitration awards.” Washington Hospital Center v. Service Employees Local 722, 746 F.2d 1503, 1515 (D.C.Cir.1984). “[T]his Circuit has said ‘[t]hat the better view is that an award will not be vacated even though the arbitrator may have made, in the eyes of judges, errors of fact and law unless it compels the violation of law or conduct contrary to accepted public policy.’ Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 442 F.2d 1234, 1239 (D.C.Cir.1971).” Id. at 1514.

The USPS cites numerous court decisions and several Merit Systems Protection Board decisions to buttress its contention that enforcement of Arbitrator Seidman’s award would, indeed, violate the public policy of removing individuals who commit morals offenses, especially morals offenses against minors, from positions of public trust. Defendant’s Motion for Summary Judgment at 8-16. Specifically, the USPS urges that public policy grounds for refusing to enforce the instant arbitration award are compelling here because of the high standard of conduct to which USPS employees must be held.

First, it must be noted that much of the authority cited by defendant where the public policy exception was operative arose outside of the collective bargaining context. See, e.g., Bonet v. United States Postal Service, 712 F.2d 213 (5th Cir.1983); Yacovone v. Bolger, 645 F.2d 1028 (D.C.Cir.), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981). Second, courts in this Circuit have effectively rejected the liberal reading of the public policy exception adopted by the First Circuit and the Fifth Circuit. See, e.g., Service Employees Local 722 v. Children’s Hospital National Medical Center, 117 LRRM 2486 (D.D.C.1984); Washington-Baltimore Newspaper Guild, Local 35 v. The Washington Star Co., 113 LRRM 3133 (D.D.C.1982). But see United States Postal Service v. American Postal Workers Union, 736 F.2d 822 (1st Cir.1984); Amalgamated Meat Cutters Local Union 540 v. Great Western Food Co., 712 F.2d 122, reh’g denied, 717 F.2d 1399 (5th Cir.1983). Third, although the legal precedent indicates that valid grounds for dismissal exist where persons are charged with or convicted of morals offenses, it does not establish a clear public policy against reinstating persons so charged to positions in public employment.

The defendant also notes that the offense for which Mr. Schwartz was indicted is a violation of Illinois state law, and undoubtedly the law of all states. While this is true, the indictment against Mr. Schwartz was dropped upon his entering a voluntary deferred prosecution program and paying a fine. The Court knows of no statute that prohibits outright people in such circumstances from working for the USPS. Presumably the arbitrator was cognizant of the circumstances surrounding Mr. Schwartz’s offense and the nature of the USPS. Whether, in this context, Mr. Schwartz’s offense constituted a sufficient violation of the general standards of conduct set forth in the collective bargaining agreement to require dismissal was solely for the arbitrator to determine. United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. at 596, 80 S.Ct. at 1360.

The USPS further argues that Arbitrator Seidman erred in not allowing certain evidence which would have shown conclusively that the reinstatement award should not have been made. It is well settled that courts “should not undertake to review the merits of arbitration awards but should defer to the tribunal chosen by the parties finally to settle their disputes.” Hines v. Anchor Motor Freight, 424 U.S. 554, 563, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976). Beyond that defendant’s argument invites the Court to engage in pure speculation, which it will not do.

The Court in no way seeks to excuse or belittle Mr. Schwartz’s admitted offense. This Court, however, does not sit in judgment of Mr. Schwartz; it sits to judge the validity of an award made under a valid collective bargaining agreement which binds the parties. Defendant’s appeal to the public policy exception is a thinly disguised effort to retry the case that it lost in arbitration. Were the Court to read the public policy exception as generously as defendant urges, it “... would make meaningless the provisions that the arbitrator’s decision is final____” Steelworkers Union v. Enterprise Wheel and Car Corp., 363 U.S. at 599, 80 S.Ct. at 1362. The Supreme Court and this Circuit, in particular, have emphasized the extreme narrowness of the public policy exception so as not to open the door to wholesale attack on the finality of arbitration awards in contravention of longstanding Federal labor policies. Supra at 1528-1529.

The USPS has shown no well-defined and dominant public policy as articulated in laws and legal precedents that requires vactur of the award. Defendant’s case is constructed on a foundation of “... general considerations of supposed public interests.” Muschany v. United States, 324 U.S. at 66, 65 S.Ct. at 451. As explained by the W.R. Grace & Co. Court, such a foundation is unable to support the weight of authority required to eclipse the arbitration edifice central to Federal labor policies. W.R. Grace & Co. v. Local Union 759, 461 U.S. at 766, 103 S.Ct. at 2183.

The Court attaches an order enforcing the arbitration award. Furthermore, the defendants are directed to pay Mr. Schwartz back pay with interest from the time of the award until he is reinstated.

ORDER

Upon consideration of defendant’s motion for summary judgment; plaintiff’s opposition thereto and cross-motion for summary judgment; defendant’s reply and opposition to plaintiff’s motion; plaintiff’s reply; the affidavits and exhibits submitted by the parties; and for the reasons set forth in the accompanying opinion, it is by the Court this 15th day of January 1986,

ORDERED that defendant’s motion for summary judgment is denied; it is further

ORDERED that plaintiff’s motion for summary judgment is granted; it is further

ORDERED that the arbitration award of May 27, 1985, reinstating Mark A. Schwartz be enforced; it is further

ORDERED that defendant pay Mark A. Schwartz back-pay from May 27, 1985, to the date of reinstatement, plus interest at the legal rate; and it is further

ORDERED that this action is dismissed.