source: Caselaw Access Project

author: EARL E. O’CONNOR, Chief Judge.

license: Public Domain

text:
    WAGNER ELECTRIC CORPORATION, McGraw-Edison Company, and Edison International, Inc., Plaintiffs, v. Lee THOMAS, as Administrator of the United States Environmental Protection Agency; Morris Kay, as Regional Administrator of Region VII of the United States Environmental Protection Agency; the United States Environmental Protection Agency; and the Land Clearance for Redevelopment Authority of the County of St. Louis, Missouri, Defendants.
    Civ. A. No. 85-2212-O.
    United States District Court, D. Kansas.
    June 20, 1985.

      Byron L. Gregory, Louis M. Rundió, Jr., Steven H. Hoeft, Stephen P. Krchma, McDermott, Will & Emery, Chicago, 111., Charles A. Getto, J. Nick Badgerow, McAnany, Van Cleave & Phillips, Kansas City, Kan., for plaintiffs.
    David Lamar Kopp, Asst. Regional Counsel, U.S. E.P.A., Kansas City, Kan., Michael W. Neville, Dept, of Justice, Washington, D.C., Benjamin L. Burgess, U.S. Atty., Julie Robinson Trice, Asst. U.S. Atty., Kansas City, Kan., for defendants Lee Thomas, Morris Kay, and U.S. E.P.A.
    William V. North, Shughart, Thomason & Kilroy, Overland Park, Kan., Albert A. Michenfelder, Jr., Steven W. Koslovsky, Ziercher, Hocker, Human, Michenfelder & Jones, Clayton, Mo., for defendant The Land Clearance for Redevelopment Authority of the County of St. Louis, Mo.
   MEMORANDUM AND ORDER

EARL E. O’CONNOR, Chief Judge.

Plaintiffs in this action have filed a motion to stay the enforcement of an order issued by defendant Morris Kay in his capacity as Regional Administrator of the Environmental Protection Agency (EPA). A hearing on the motion was held on April 9, 1985, and both sides have presented numerous written briefs. We are now prepared to rule.

I. Statutory Framework.

The challenged EPA order was issued pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601 et seq. Perhaps the best known feature of CERCLA is the “Superfund” established to permit immediate governmental cleanup of hazardous waste sites. See CERCLA § 221, 42 U.S.C. § 9631. At issue in this case, however, are certain other provisions of that Act which permit EPA to replenish the Superfund by bringing a civil action against the party or parties actually responsible for the hazardous wastes.

When the President (and, through delegation of authority, the EPA Administrator) determines that “there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance” from a particular site, he may pursue one of three options. First, he may file a civil suit to obtain a court order enjoining the responsible party or parties to take such action as may be necessary to remove the hazardous waste threat. CERCLA § 106(a), 42 U.S.C. § 9606(a). Second, he may issue an administrative order directing the responsible party or parties to take the appropriate actions. Id. And, third, once he determines that a party will not comply with a judicial or administrative order issued under CERCLA § 106(a), he may expend Superfund monies to pay a third party for remedying the situation. CERCLA § 104(a)(1), 42 U.S.C. § 9604(a)(1). Where this third option is employed, the responsible party or parties are liable to the Superfund for any money drawn therefrom as a part of a cleanup response. CERCLA § 112(c)(1), 42 U.S.C. § 9612(c)(1). Under any of these three options, the “responsible party or parties” are those specifically defined in CERCLA § 107(a), 42 U.S.C. § 9607(a).

In enacting this statutory framework, Congress provided that each option would carry its own incentive for compliance by a responding party. Refusal to comply with a judicial cleanup order, of course, would carry a contempt sanction. One who “willfully violates, or fails or refuses to comply with, any order” issued by EPA under CERCLA § 106(a) may be forced to pay a civil penalty of up to $5,000.00 a day. CERCLA § 106(b), 42 U.S.C. § 9606(b). And, where a responsible party “fails without sufficient cause” to comply with an EPA cleanup order, thus forcing EPA to expend Superfund monies to accomplish that cleanup, the noncomplying party may be forced to pay “punitive damages” of up to three times the amount expended from the Superfund (in addition to the actual expenditures recoverable under CERCLA § 112(c)(1)). CERCLA § 107(c)(3), 42 U.S.C. § 9607(c)(3).

It is undisputed that CERCLA requires no administrative hearing before EPA issues a cleanup order under § 106(a) or elects to expend Superfund monies under § 104(a)(1). Accordingly, a responding party’s liability for daily penalties and/or punitive damages may accrue prior to any administrative or judicial hearing. See Aminoil, Inc. v. United States Environmental Protection Agency, 599 F.Supp. 69, 73 (C.D.Cal.1984). The assessment of such penalties or damages, however, may come only after EPA prevails in an enforcement or recovery action filed in the United States District Court. Should a responding party convince the court that it is not a “responsible party,” it escapes liability for such sums.

A party choosing not to contest an EPA cleanup order may simply comply therewith. Since EPA would then be barred from seeking either daily penalties or punitive damages, the complying party could thus limit its loss exposure to the actual cost of cleanup. Such a complying party also retains the option of later establishing in court that it was not “responsible” for the hazardous wastes. Having made such a showing, however, that party is not entitled to seek reimbursement from EPA for amounts expended in the cleanup effort. Aminoil, 599 F.Supp. at 73-74. That party’s sole remedy is to identify the true responsible party or parties, and to seek reimbursement from them. See CERCLA § 112(c)(2), 42 U.S.C. § 9612(c)(2).

II. Administrative Action in this Case.

In this case, the EPA Administrator chose not to seek a judicial injunction requiring these plaintiffs to initiate cleanup activities. Rather, he opted to issue an administrative order directing them to do so. Thus, on March 19, 1985, EPA filed with its Regional Hearing Clerk a notification that the Regional Administrator might issue an administrative order under CERCLA § 106(a). A copy of this notice was received by the plaintiffs on the next day. The notice included the EPA’s proposed findings of fact, conclusions of law, determination, and order. Plaintiffs were given until 5:00 p.m. on March 22nd to submit a written response to EPA’s regional office in Kansas City, Kansas. The notice quite plainly stated that:

Circumstantial exigencies having been considered, Region VII will not extent (sic) this deadline. Only evidence timely submitted will be considered. Nethier (sic) oral argument nor oral testimony will be recieved (sic).
... This administrative proceeding constitutes the named potential respondents only pre-enforcement opportunity to show that sufficient cause exists for noncompliance with the proposed order.
... Any order that may issue as a result of the pending determination will be unilateral. Therefore, no dialogue over the substantive provisions contained in the attached proposed order will be exchanged.

Notice of March 19, 1985, at 2-3.

On March 22,1985, plaintiffs submitted a six-page response to this proposed order.

They objected to the procedures used in issuing the proposed order and requested: (1) that the deadline for presenting evidence be extended to April 30, 1985, (2) that they be granted a hearing at which they could cross-examine any witnesses EPA might use to support the “evidence” in the notice, and (3) that a record of that hearing be preserved for purposes of judicial review. On the day before, such requests had already been presented in person to an official at EPA’s regional office. All such requests had been denied at that time.

The final administrative order was issued on March 27, 1985, and differs in only minor respects from the proposal of eight days earlier. Among the order’s findings of fact are the following:

(1) Plaintiffs (inter-related corporations) owned an allegedly contaminated site in St. Louis County, Missouri, until 1983.
(2) During 1967 and 1968, a facility located at that site produced utility transformers containing polychlorinated biphenyls (PCBs).
(3) PCBs have been designated as a hazardous substance in accordance with various federal environmental laws, and were confirmed to be present in certain portions of the site.
(4) Pursuant to a written agreement executed on October 27, 1982, and performed by July 1, 1983, the entire site was transferred on a donative basis from plaintiffs to the Land Clearance Redevelopment Authority, County of St. Louis, Missouri (“LCRA”).

Among the order’s conclusions of law are that plaintiffs and LCRA are all “responsible parties” within the meaning of CERCLA § 107(a), 42 U.S.C. § 9607(a), and that “[tjhere may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of hazardous substance from the facility within the meaning of” CERCLA § 106(a), 42 U.S.C. § 9606(a). Plaintiffs have been ordered to conduct all surveys and other studies necessary for the development of a cleanup plan. Said plan is to be submitted to the EPA for its approval and then implemented by the plaintiffs. Apparently accepting LCRA’s assertion that it lacks the financial resources to participate in a cleanup operation, see Transcript of April 9, 1985, Hearing, at 29, the order limits LCRA’s responsibility to providing plaintiffs and other necessary parties with access to the site.

The order notes that it is “effective upon receipt” by these plaintiffs and LCRA, and that “[a]ll times for performance of response activities shall be calculated from that time and date.” Order of March 27, 1985, at 13. The order also contains a separate section captioned “Penalties for Non-Compliance.” This section makes reference to the daily penalties provision of CERCLA § 106(b) and the punitive damages provision of CERCLA § 107(c)(3). Given the order’s immediate effective date, we assume that the $5,000.00 daily penalty began to accrue on or about March 28, 1985.

In its brief of May 17, 1985, however, EPA notified both the court and the plaintiffs that daily penalties are no longer an issue in this case. EPA explained that it no longer intends to seek a court order enforcing its administrative order. Rather, it will exercise its authority under CERCLA § 104(a)(1) to expend Superfund monies in accomplishing the cleanup effort. The brief further expressed EPA’s intent to seek recovery from the plaintiffs for the full cost of the government’s cleanup effort, and it did not rule out a request that plaintiffs be forced to pay the treble punitive damages assessable under CERCLA § 107(c)(3). Despite EPA’s decision to expend Superfund monies on this cleanup effort, the brief noted that plaintiffs will still be allowed to request to do whatever work has not already been contracted. .By doing so, of course, they would reduce, to that extent, their exposure to an assessment of punitive damages. See EPA Brief of May 17, 1985, at 2-3.

III. Availability of Judicial Review.

In their motion to stay the EPA order, plaintiffs raise the following distinct, claims:

(1) the plaintiffs had no opportunity to participate in a meaningful way in the decision-making process;
(2) the Order does not afford the plaintiffs adequate notice of the actions they are required to take; and
(3) the penalties of the Order chill the plaintiffs’ exercise of their right to challenge the Order.

Plaintiffs’ Brief of April 8, 1985, at 8.

Before we may grant plaintiffs relief as to any of these three claims, that claim must clear at least three major hurdles. First, we must determine that we have subject matter jurisdiction to consider the claim. Second, assuming such jurisdiction, we must determine if the claim is ripe for judicial review. And third, any claim which is both within our subject matter jurisdiction and ripe for judicial review must still be measured against the standards for obtaining a stay of an administrative order.

A. Subject Matter Jurisdiction.

Because CERCLA was enacted only in 1980, and has been implemented even more recently, neither the Supreme Court nor any circuit court of appeals has had occasion to address these issues. However, the reported district court decisions are virtually unanimous in holding that a federal court lacks subject matter jurisdiction to review the merits of a CERCLA order prior to EPA’s seeking to enforce that order. See, e.g., Aminoil, supra, 599 F.Supp. at 71; Lone Pine Steering Committee v. United States Environmental Protection Agency, 600 F.Supp. 1487, 1494 (D.N.J.1985); Earthline Co. v. Kin-Buc, Inc., 21 Env’t Rep.Cas. (BNA) 2161 (D.N.J. July 23, 1984); United States v. Outboard Marine Corp., 104 F.R.D. 405 (N.D.Ill.1984). Cf. J.V. Peters & Co., Inc. v. Ruckelshaus, 584 F.Supp. 1005, 1010 (N.D.Ohio 1984) (no pre-enforcement judicial review unless EPA action had “absolutely no rational basis”). Plaintiffs' first two claims relate to the merits of the EPA order. Therefore, we lack subject matter jurisdiction to consider those claims. The third claim, however, relates not to the merits of the order, but to the constitutionality of the statutory scheme under which it was issued. Thus, CERCLA § 113(b), 42 U.S.C. § 9613(b), provides us with jurisdiction to consider this third claim. Aminoil, 599 F.Supp. at 72.

B. Ripeness.

In Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), the Court addressed the question of when a controversy is “ripe” for judicial resolution. As the Court noted:

The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

387 U.S. at 149, 87 S.Ct. at 1515. The issue presented by plaintiffs’ third claim is a “purely legal one,” and is thus fit for judicial determination. Id.; Aminoil, 599 F.Supp. at 72. Moreover, plaintiffs are placed in the unenviable position of deciding whether to disobey the EPA order, and thus run the risk of incurring treble punitive damages, or to comply with the order, and, if subsequently proven not to be “responsible parties,” have a right to seek reimbursement only from the apparently insolvent LCRA. As the Aminoil court aptly noted:

If this Court were to withhold its consideration of the issue, plaintiffs will suffer the hardship of having to make a decision that may foreclose their access to a legal forum without the aid of a judicial determination clarifying the constitutionality of the parameters within which such a decision must be made.

599 F.Supp. at 72. Thus, the hardship to the plaintiffs of withholding court consideration of their claim also argues in favor of a conclusion that this issue is ripe for judicial resolution. Accordingly, we may proceed to measure plaintiffs’ third claim against the standards for obtaining a stay of an administrative order.

IV. Entitlement to a Stay of this Administrative Order.

Where parties have sought to stay administrative action, the Tenth Circuit has simply applied its preliminary injunction standard. See National Indian Youth Council v. Andrus, 623 F.2d 694, 695 (10th Cir.1980); Associated Securities Corp. v. Securities & Exchange Commission, 283 F.2d 773, 774-75 (10th Cir.1960). As stated in Otero Savings & Loan Ass’n v. Federal Reserve Bank of Kansas City, Mo., 665 F.2d 275 (10th Cir.1981), a party seeking to obtain a preliminary injunction must establish:

(1) substantial likelihood that the movant will eventually prevail on the merits;
(2) a showing that the movant will suffer irreparable injury unless the injunction issues;
(3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing parties; and
(4) a showing that the injunction, if issued, would not be adverse to the public interest.

665 F.2d at 278. Moreover:

The Tenth Circuit has adopted the Second Circuit’s liberal definition of the “probability of success” requirement. When the other three requirements for a preliminary injunction are satisfied, “it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.”

Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1953)). Because the application of this more liberal “probability of success” standard depends upon the establishment of the other three elements, we will first address those other elements.

A. Irreparable Injury.

If plaintiffs choose not to comply with this EPA order, they may eventually be forced to pay four times the amount expended from the Superfund in effecting a cleanup of the allegedly contaminated site. If they do comply, and later establish that they were not “responsible parties” within the meaning of CERCLA, plaintiffs cannot seek reimbursement from EPA. It is true that plaintiffs could then seek reimbursement from the true responsible party or parties. In this case, however, the only other allegedly responsible party identified by EPA is the LCRA, which EPA has already found to be financially unable to bear the cost of cleanup. As plaintiffs describe their dilemma, they are thus presented with a “Hobson’s choice”—either fail to comply and face massive liability, or comply and all but abandon any hope of recovering funds spent on cleanup activities for which they were not truly responsible. Accordingly, unless plaintiffs can obtain a determination as to whether the EPA order validly names them as responsible parties, they are subject to irreparable injury.

B. Damage to the EPA.

In the context of this case, this element of the preliminary injunction standard is irrelevant. As an administrative agency, EPA exists only to serve the public interest. Thus, its interests are fully subsumed within the broader public interest. Any asserted interest other than that of the public would not be legitimate, and will not be considered by this court.

C. The Public Interest.

“There is a compelling public interest in oversight of governmental actions which deprive individuals of generally protected liberty or property interests.” Industrial Park Development Co. v. United States Environmental Protection Agency, 604 F.Supp. 1136, 1145 (E.D.Pa. March 21, 1985). To the extent that plaintiffs might establish their entitlement to relief on the merits, then, the public interest would suffer if we were to deny plaintiffs’ request for a stay of this order.

Moreover, now that EPA has elected to expend Superfund monies in effecting the desired cleanup, we assume that the process will proceed without delay. Thus, even if we were to stay this aspect of the EPA order, the health and safety of those living near the allegedly contaminated site would be protected. Taken together, these factors lead to the conclusion that such a stay would not be adverse to the public interest.

D. Probability of Success on the Merits.

. Having established that they could suffer irreparable injury if the stay were not granted, and that the stay would not be adverse to the public (and thus EPA’s) interest, plaintiffs need only establish that they have “raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.” Otero Savings & Loan Ass’n, supra, 665 F.2d at 278. In connection with this claim for relief, the parties have briefed three interrelated issues. Each will be considered in turn.

1. Chilled Access to Judicial Review.

“Access to the courts of the United States is a constitutional right guaranteed by the Due Process Clauses of the Fifth and Fourteenth Amendments. This right of access to the courts cannot be infringed upon or burdened.” Silver v. Cormier, 529 F.2d 161, 163 (10th Cir.1976) (citations omitted). The statutory provisions at issue in this case do not directly deny plaintiffs access to federal court. Indeed, plaintiffs can suffer no detriment unless and until EPA files an action against them in federal court. See CERCLA § 107(c)(3), 42 U.S.C. § 9607(c)(3). It is clear, however, that the protection of the due process clause extends to more than those whose access to federal court is directly foreclosed.

In Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Court considered a state statute enabling an administrative commission to establish a schedule of railroad freight rates. The railroads were granted no hearing before this commission, nor was there a provision for judicial review as to the reasonableness of the rates imposed. If the railroads wished to assert that the rates deprived them of their property without just compensation, their only recourse was to suffer a criminal indictment and to contest the adequacy of the rates in the ensuing criminal prosecution. The Court found that statutory framework to be a violation of the railroads’ right to procedural due process. Its reasoning was as follows:

It may therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights.

Young, 209 U.S. at 147, 28 S.Ct. at 448.

As was true of the rates in Young, this EPA order may not be challenged until such time as it is sought to be enforced. By subjecting the plaintiffs to possible punitive damages for asserting an unsuccessful challenge to the order, the statute may be said to intimidate them into complying with the order and abandoning their right to seek a judicial determination of its validity. Therefore, plaintiffs correctly argue that they fall within the protective embrace of the rule enunciated in Ex Parte Young.

2. “Good Faith” Requirement.

Only twelve years after its holding in Young, however, the Court qualified its holding. The statute at issue in Oklahoma Operating Co. v. Love, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596 (1920), established an administrative commission with authority to regulate businesses it deemed to have monopoly power. After notice and a hearing, the commission could order a business to adhere to certain rates. Should those rates not be obeyed, the commission could impose a penalty of up to $500.00 a day. Only in a subsequent contempt proceeding could the validity of the commission’s order be challenged. As the Court noted:

The penalties, which may possibly be imposed, if he pursues this course without success, are such as might well deter even the boldest and most confident____ Obviously a judicial review beset by such deterrents does not satisfy the constitutional requirements, even if otherwise adequate, and therefore the provisions of the Acts relating to the enforcement of the rates by penalties are unconstitutional without regard to the question of the insufficiency of those rates. Ex Parte Young, 209 U.S. 123, 147, 28 S.Ct. 443, 448.

Love, 252 U.S. at 336-37, 40 S.Ct. at 340.

What is more important for our purposes is the remedy imposed by the Love Court:

The suit should, therefore, proceed for the purpose of determining whether the maximum rates fixed by the Commission are, under present conditions, confiscatory. If they are found to be so, a permanent injunction should issue to restrain their enforcement either by means of penalties or otherwise, ____ If upon final hearing the maximum rates fixed should be found not to be confiscatory, a permanent injunction should, nevertheless, issue to restrain enforcement of penalties accrued pendente lite, provided that it also be found that the plaintiff had reasonable ground to contest them as being confiscatory.

Love, 252 U.S. at 337-38, 40 S.Ct. at 340 (emphasis added). By adding the highlighted phrase, the Court indicated that even though a penalty might discourage a party from seeking judicial review, that penalty could be enforced against a party having no “reasonable ground to contest” the disputed administrative action. In other words, one must assert an objectively good faith challenge to such administrative action before one may invoke the protections of Ex Parte Young.

This construction of Love is confirmed by the Court’s resolution of a similar chailenge in Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964). There a litigant challenged a procedure by which noncompliance with an Internal Revenue Service summons could be punished as contempt of court. The Court rejected a challenge expressly based on Young and Love by stating:

This statute on its face does not apply where the witness appears and interposes good faith challenges to the summons. It only prescribes punishment where the witness “neglects” either to appear or to produce. We need not pass upon the coverage of this provision in light of the facts here. It is sufficient to say that noncompliance is not subject to prosecution thereunder when the summons is attacked in good faith.

375 U.S. at 447, 84 S.Ct. at 512 (emphasis added). Again, then, the Court held that the provision of a “good faith” defense to a statute penalizing noncompliance with an administrative order sufficiently cured any potential due process violation.

EPA argues that the statutory framework of CERCLA falls within this “good faith” exception to Ex Parte Young. We must thus determine if CERCLA § 107(c)(3) does provide for such a good faith defense to the imposition of treble punitive damages. In so doing, we start from the proposition that “in determining the scope of a statute, one is to look first at its language.” North Dakota v. United States, 460 U.S. 300, 312, 103 S.Ct. 1095, 1103, 75 L.Ed.2d 77 (1983). The language of CERCLA § 107(c)(3) is as follows:

(c) If any person who is liable for a release or threat of release of a hazardous substance fails without sufficient cause to properly provide removal or remedial action upon order of the President pursuant to section 104 or 106 of this Act, such person may be liable to the United States for punitive damages in an amount at least equal to, and not more than three times, the amount of any costs incurred by the Fund as a result of such failure to take proper action. The President is authorized to commence a civil action against any such person to recover the punitive damages, which shall be in addition to any cost recovered from such person pursuant to section 112(c) of this Act. Any monies received by the United States pursuant to this subsection shall be deposited in the Fund.

(Emphases added.)

As the highlighted portions of this provision indicate, punitive damages “may” be assessed against a party who fails “without sufficient cause” to comply with an EPA order. Use of the term “may” clearly denotes that the reviewing court has discretion not to assess punitive damages against a party failing to comply with an EPA order. EPA cites various cases for the proposition that such judicial discretion alone is sufficient to distinguish this provision from the mandatory penalties at issue in Young. See, e.g., Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1121 & n. 8 (2d Cir.1975), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 8 (1976); Union Electric Co. v. United States Environmental Protection Agency, 593 F.2d 299, 306 (8th Cir.1979), cert. denied, 444 U.S. 839, 100 S.Ct. 76, 62 L.Ed.2d 50 (1979). We are not so inclined as those courts to believe that mere judicial discretion sufficiently removes the chill otherwise placed on plaintiffs’ access to judicial review. Absent any guidelines by which a court is to exercise its discretion, plaintiffs are in no position to judge the advisability of a challenge to the order’s validity.

Fortunately, we need not address this question. The statute at issue here does provide such guidance for the exercise of the reviewing court’s discretion. It states that punitive damages may be imposed only when a party’s noncompliance is “without sufficient cause.” Since this phrase is inherently ambiguous, and is apparently not defined within the Act, we must look to the Act’s legislative history for its proper interpretation.

The court in United States v. Reilly Tar & Chemical Corp., 606 F.Supp. 412 (D.Minn.1985), conducted such a search of the legislative history and determined that the only specific reference to the “without sufficient cause” language is as follows:

MR. SIMPSON: Under section 107(c)(3), punitive damages may be imposed only when the failure to take proper removal or remedial action upon order is “without sufficient cause.” What is intended by the phrase “without sufficient cause”?
MR. STAFFORD: We intend that the phrase “sufficient cause” would encompass defenses such as the defense that the person who was the subject of the President’s order was not the party responsible under the act for the release of the hazardous substance. It would certainly be unfair to assess punitive damages against a party who for good reason believed himself not to be the responsible party.

Reilly Tar 606 F.Supp. at 419-20 (citing 1 A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 at 770-71) (emphasis added). See also Aminoil, supra, 599 F.Supp. at 73 (citing 126 Cong. Rec. at 30986 (November 24, 1980)).

The similarity of the highlighted sentence to the proviso added to the Court’s opinion in Love is obvious. Both speak of a party who reasonably believes that he has a successful defense to an administrative order. By including the phrase “without sufficient cause,” then, Congress apparently intended to bring this statute within the scope of the “good faith” exception to Young, as enunciated in both Love and Reisman.

Even without this useful legislative history, however, we would construe this phrase as referring to a “good faith” defense. Were we not to do so, the statute might well be constitutionally invalid as placing an undue burden on plaintiffs’ access to judicial review. We would thus invoke the Supreme Court’s repeated admonition that:

If a construction of the statute is fairly possible by which a serious doubt of constitutionality may be avoided, a court should adopt that construction. In particular, this Court has been willing to assume a congressional solicitude for fair procedure, absent explicit statutory language to the contrary.

Califano v. Yamasaki, 442 U.S. 682, 693, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979) (Court’s citation, brackets, and internal quotations omitted). See also Reilly Tar, 606 F.Supp. at 419 n. 3 (applying this rule to equate “sufficient cause” with “good faith”).

Accordingly, we construe CERCLA § 107(c)(3) to prohibit a reviewing court from assessing punitive damages against a party who fails to comply with an EPA order in the reasonable belief that it has a valid defense to that order. As so construed, the statute would pass constitutional muster under either Young or the clarification of Young contained in Love and Reisman.

3. Denial of an Administrative Hearing.

Plaintiffs acknowledge that certain of the cases cited by EPA do suggest that the nonmandatory assessment of penalties against one launching an unsuccessful judicial challenge to an administrative order does not violate the due process clause. They seek to distinguish those cases from the case at hand, however, on the ground that each of those eases construed statutes granting the complaining party a hearing at the administrative level. By contrast, CERCLA grants no administrative hearing to parties named in EPA orders; nor did EPA exercise its discretion to grant plaintiffs’ request for a hearing. In plaintiffs’ view, this denial of an administrative hearing renders even a nonmandatory penalty such as this unconstitutional as a denial of due process.

It is true that nearly all of the cases cited by EPA did construe statutes granting administrative hearings. See Love, supra, 252 U.S. at 335, 40 S.Ct. at 339 (no administrative order “except upon due notice and a hearing”); Reisman, supra, 375 U.S. at 445, 84 S.Ct. at 511 (party afforded an opportunity to challenge administrative summons before IRS hearing officer); Bethlehem Steel Corp. v. United States Environmental Protection Agency, 669 F.2d 903, 906 (3d Cir.1982) (party entitled to a hearing on the record and a decision within ninety days of receiving notice of alleged violation); Duquesne Light Co. v. United States Environmental Protection Agency, 698 F.2d 456, 464 (D.C.Cir.1983) (same statute as in Bethlehem Steel); Union Electric Co. v. United States Environmental Protection Agency, 593 F.2d 299, 303 n. 4, 304 n. 7 (8th Cir.1979) (party entitled to an “informal administrative conference,” at which it may “present information upon the findings of violation”); Lloyd A. Fry Roofing Co. v. United States Environmental Protection Agency, 554 F.2d 885, 887, 888 n. 1 (8th Cir.1977) (same statute as in Union Electric, although party was granted a “formal evidentiary hearing”). It is also true that Ex Parte Young contains the following suggestive passage:

In the case, however, of the establishment of certain rates without any hearing, the validity of such rates necessarily depends upon whether they are high enough to permit at least some return upon the investment (how much it is not now necessary to state), and an inquiry as to that fact is a proper subject of judicial investigation. If it turns out that the rates are too low for that purpose, then they are illegal. Now, to impose upon a party interested the burden of obtaining a judicial decision of such a question {no prior hearing having ever been given) only upon the condition that if unsuccessful he must suffer imprisonment and pay fines as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid.

209 U.S. at 147-48, 28 S.Ct. at 448-449 (emphases added). While we understand the distinction plaintiffs are attempting to draw, we discern at least three problems with such a distinction.

First, none of the cited decisions actually discusses the effect of granting or denying an administrative hearing. Aside from a brief description of the statute at issue, the highlighted phrases are the Young decision’s only two references to administrative hearings. In those cases which construed statutes granting administrative hearings, references to that fact are even more oblique than in Young. The only possible exception would be Duquesne Light Co., where the court arguably implies that the Young holding may be avoided only by granting an administrative hearing. Near the end of a long footnote, the eourt states:

Unlike the penalties in Ex Parte Young, which were triggered by any effort to seek review of the underlying legal requirement, the section 120 noncompliance penalties are simply penalties that accrue during the period in which the alleged violator contests his liability to the penalty. Such penalties are common; for example, penalties for violations of the Occupational Safety and Health Act accrue during the period of judicial review of liability, 29 U.S.C. § 666(d), (i) (1976). They are valid, assuming the source is accorded adequate opportunity to challenge their assessment at the administrative level before payment must begin.

Duquesne Light Co., 698 F.2d at 470 n. 14 (emphasis added).

Although the highlighted phrase appears to support plaintiffs’ argument, it is actually quite ambiguous. For example, it refers to “assessment at the administrative level.” No such assessment is permissible under CERCLA; rather, EPA must convince a court to assess punitive damages. Moreover, the footnote speaks of adequate opportunity to challenge such an assessment “before payment must begin.” Again, CERCLA provides these plaintiffs with such an opportunity; they may oppose EPA’s request for judicial assessment of such damages. Therefore, the quoted phrase would not necessarily prohibit the procedure established under CERCLA. Indeed, an examination of the statute at issue in Duquesne Light Co. reveals that it did permit the assessment of penalties at the administrative level. The quoted language was thus addressed to an entirely different question than that presented here.

Admittedly, plaintiffs’ failure to cite language in support of its argument would not prevent us from recognizing this distinction. However, we could craft such a distinction only by engaging in massive reinterpretation of the case law. That not a single court has so much as suggested such a reinterpretation counsels strongly against such a course.

The second problem with plaintiffs’ asserted distinction is even more telling. The claim under review in this case is that the punitive damages provision unconstitutionally chills plaintiffs’ exercise of their right to seek judicial review of an administrative order. For this distinction to be valid, plaintiffs must demonstrate some logical nexus between the denial of an administrative hearing and the creation of a chill on their access to the courts. They have suggested no such nexus, and the two issues would seem to be unrelated.

Oddly enough, EPA sets forth a proposition which would establish such a nexus between the denial of an administrative hearing and a chill on plaintiffs’ right to seek judicial review. They suggest that, in determining whether plaintiffs had a good faith defense to this order, the reviewing court “would restrict its inquiry to the Order, the administrative record, and any information which Plaintiffs gave to the Agency concerning the appropriateness of the Order.” EPA Brief of May 17, 1985, at 8. Were this proposition true, plaintiffs would be greatly handicapped in their attempt to convince the reviewing court that their asserted defense (assuming it was unsuccessful) was raised in objective good faith. Because their request for a hearing (with its accompanying oral argument, presentation of plaintiffs’ witnesses, and cross-examination of EPA’s witnesses) was denied, the administrative record has been created almost entirely by EPA. It therefore contains virtually no evidence that might exculpate these plaintiffs. Faced solely with this administrative record, a reviewing court would cast a skeptical eye on plaintiffs’ claim to have asserted a good faith defense to the validity of the order.

EPA cites no authority for this proposition, however, and we find ourselves in disagreement with it. “A fundamental requirement of due process is ‘the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363. It is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). To limit a reviewing court to the administrative record, at least where no administrative hearing is required, would surely not be a “meaningful manner” of affording aggrieved parties an opportunity to be heard. We conclude, therefore, that these plaintiffs are free to present to the reviewing court any evidence of their good faith in challenging the validity of this order. In our opinion, EPA’s denial of an administrative hearing should be a relevant factor in the reviewing court’s determination of plaintiffs’ good faith. Thus, plaintiffs have failed to establish any logical nexus between the denial of an administrative hearing and an unconstitutional chill on their right to seek judicial review of this administrative order.

The third problem with plaintiffs’ asserted distinction comes in the form of a Fifth Circuit decision which we find legally indistinguishable from the instant case. In Dan J. Sheehan Co. v. Occupational Safety and Health Review Commission, 520 F.2d 1036 (5th Cir.1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976), the court addressed a due process challenge to the Occupational Safety and Health Act. Under that Act, the Secretary of Labor is empowered to assess a civil penalty against an employer found (without a hearing) to have violated workplace safety regulations. Within fifteen days thereafter, the employer may contest the Secretary’s order by taking an appeal to the Occupational Safety and Health Review Commission (the “Commission”). 29 U.S.C. § 659(c). For each day in which an employer fails to correct an alleged safety violation, he may be assessed a civil penalty of up to $1,000.00. 29 U.S.C. § 666(d). However, such daily penalties do not accrue during the pendency of a Commission review proceeding “initiated by the employer in good faith and not solely for delay or avoidance of penalties.” Id. (emphasis added). The Commission is given “authority to assess all civil penalties provided in this section, giving due consideration to,” inter alia, “the good faith of the employer.” 29 U.S.C. § 666(i).

The Fifth Circuit considered “whether the threat of increased penalties after employer-initiated review violates the employer’s due process rights under the Fifth Amendment.” 520 F.2d at 1040. Despite the fact that the employer had no opportunity for an administrative hearing prior to seeking Commission review, the court upheld the Occupational Safety and Health Act against this due process challenge. In so doing, the court took its guidance from Supreme Court decisions that had “focused on the potential for vindictiveness to determine whether a particular procedure violates due process.” 520 F.2d at 1040 (emphasis added) (citing Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974)). The court concluded that, although the Commission might be tempted to respond vindictively to one who challenged an order of the Secretary of Labor, the employer would be “insulated” from this chilling effect by the availability of judicial review. 520 F.2d at 1042.

In the case at hand, the insulation against potential vindictiveness is even greater. While the Commission might have some stake in an order issued by the Secretary of Labor, a reviewing court has no stake in an EPA order. Since punitive damages can only be assessed by the reviewing court, vindictiveness should play absolutely no role in this process.

Although Dan J. Sheehan Co. involved an alleged chill on a party’s right to seek administrative as opposed to judicial review, we do not view this as an important distinction. The protected interest is the same—the right to seek review of an administrative order. Furthermore, under the Occupational Safety and Health Act, review by the Commission is a prerequisite to judicial review. 29 U.S.C. § 660(a). Thus, a chill on administrative review would effectively chill one’s right to judicial review as well. We conclude, therefore, that the Fifth Circuit’s decision in Dan J. Sheehan Co. effectively undermines the distinction pressed upon us by the plaintiffs.

(We would note that this aspect of plaintiffs’ argument bears a great similarity to the first of their three claims lodged against the EPA order. That is, they assert that they had no opportunity to participate in a meaningful way in the administrative decision-making process. As noted in part III of this memorandum, we lack subject matter jurisdiction to consider that first claim. In rejecting this distinction, however, we do not mean to imply that plaintiffs’ first claim for relief is without merit. Indeed, the United States District Court for the Eastern District of Pennsylvania has suggested that “CERCLA's failure to provide either a pre-deprivation or prompt post-deprivation hearing may represent an unconstitutional deprivation of [a respondent’s] due process rights.” Industrial Park Development Co., supra, 604 F.Supp. 1136, 1141. Such a claim may be raised, however, only if and when EPA seeks to obtain reimbursement from the plaintiffs for monies expended by the Superfund.)

4. Conclusions as to Probability of Success.

We have thus concluded that, despite CERCLA’s failure to provide for an administrative hearing, its provision of a “good faith” defense to the assessment of punitive damages sufficiently answers any due process objection grounded in Ex Parte Young. We emphasize, however, that our holding is dependent upon two underlying premises: first, that a reviewing court would not be limited to the administrative record, and second, that this “good faith” defense imposes a real check on the court’s discretion in assessing punitive damages. Were the court limited to the administrative record, responding parties would be denied a meaningful hearing on the issue of good faith. And, were the reviewing court given unbridled discretion in assessing this penalty, the resulting uncertainty would itself impose a chill on a party’s right to seek judicial review.

Under our construction of CERCLA § 107(c)(3), a party’s potential liability for treble punitive damages would impose no unwarranted chill on that party’s access to judicial review of an EPA cleanup order. Accordingly, we conclude that plaintiffs have failed to raise “questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.” See Otero Savings & Loan Ass’n, supra, 665 F.2d at 278. Because plaintiffs have failed to establish this fourth element necessary to obtain preliminary injunctive relief, we must deny their motion to stay enforcement of this EPA order.

V. Caveat.

Because both parties to this suit have emphasized the public policy implications of our decision, we feel compelled to address those concerns. We first note that our decision in this matter has been based on our understanding of the law, and not on public policy. That having been said, we should dispel certain possible misconceptions.

For instance, our liberal definition of “good faith” could lead one to conclude that parties will seldom be assessed treble punitive damages under CERCLA § 107(c)(3). Without that threat of punitive damages, respondents to EPA cleanup orders might make it a practice to withhold compliance with those orders until EPA obtained judicial enforcement thereof. Surely this would undermine the intent of Congress in enacting CERCLA.

Future respondents to such EPA orders would be ill-advised, however, to place unreasonable reliance on this aspect of our decision. CERCLA is quite clear as to which parties are “responsible” for the creation, and thus the cleanup, of hazardous waste sites. Once the EPA targets such a party, it can usually remove any good faith defense to a cleanup order merely by granting that party an administrative hearing at which EPA presents persuasive evidence of the party’s “responsibility.” Where this is done, a reviewing court would be far less likely to accept a party’s contention that its challenge to an EPA order was asserted in objective good faith.

Thus, although we now find that CERCLA § 107(c)(3) meets the constitutional standard of procedural due process even without an administrative hearing requirement, EPA may soon find that its enforcement of CERCLA is unworkable without the provision of such hearings. Were EPA to make it a practice to afford all respondents an expedited but fair hearing at the administrative level, rational public policy would surely be the victor.

ORDER

IT IS THEREFORE ORDERED that plaintiffs’ motion to stay the enforcement of EPA’s March 27, 1985, administrative order is denied.


author: McLAUGHLIN, District Judge.

text:
    Nathaniel CARTER, Plaintiff, v. Henry HARRISON, Police Officer, New York City Police Department; William C. Fredericks, Detective, New York City Police Department; Warren A. Steele, Police Officer, New York City Police Department; Thomas Ahearn, Lieutenant, New York City Police Department; Stanley Andron, Sergeant, New York City Police Department; Robert J. McGuire, former Police Commissioner of the City of New York; and Michael Miele, Detective, New York City Police Department; Six Unknown Police Officers, Agents, Servants and Employees of the City of New York, Individually and in their official capacities and the City of New York, Defendants.
    No. 84 CV 3254.
    United States District Court, E.D. New York.
    June 21, 1985.

      Lawrence F. Spirn, Woodbury, N.Y., for plaintiff.
    Frederick A.O. Schwarz, Corp. Counsel of the City of N.Y., New York City, Donald J. Kravet, Christopher R. Gette, New York City, of counsel, for defendants.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

Plaintiff filed this civil rights action, 42 U.S.C. § 1983, after spending 28 months in prison for a murder he did not commit. He claims the individual defendants, all members of the New York City Police Department, suppressed exculpatory evidence during their investigation of the murder, and that the City of New York fails to train its police officers properly in the gathering and handling of evidence.

Defendants City of New York and Robert McGuire, former City Police Commissioner, moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, for summary judgment. Fed.R.Civ.P. 56. The motions were referred to Hon. Shira A. Scheindlin, United States Magistrate, for Report and Recommendation. 28 U.S.C. § 636(b)(1)(B); she treated the motions as ones for summary judgment.

After her customary thorough analysis of the issues, Magistrate Scheindlin recommended that both motions be denied, with leave to renew at the completion of discovery. A copy of the Report and Recommendation is attached to this opinion. Defendant City of New York objects to that part of the Report and Recommendation concerning the adequacy of the City’s policy for training police officers.

Discussion

An essential element of a § 1983 plaintiff’s claim against a municipality is that the denial of plaintiff’s constitutional rights be caused by an official policy or custom of the municipality. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983). A failure to properly train or supervise police officers may satisfy this requirement if that failure is so severe as to constitute “gross negligence” or “deliberate indifference” to plaintiff’s constitutional rights. Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979).

In its objection to the Report and Recommendation, the City has furnished numerous excerpts from the Police Department’s Investigators’ Guide that instruct detectives in the gathering and handling of evidence. The Court is at a loss to understand why this Guide was not submitted when this motion was filed. Although it provides the Court with a clearer picture of the City’s custom and policy than did the exhibits available to Magistrate Scheindlin, I nevertheless conclude the City’s objection must be overruled.

The Investigators’ Guide, the affidavit of Chief of Detectives Richard Nicastro, and the exhibits thereto, disclose that the City does indeed have an established policy for the gathering and handling of evidence during an investigation. The evidence adduced by plaintiff to date, however, suggests that the investigation leading to plaintiff’s conviction was conducted so shoddily as to east serious doubt on the adequacy of that policy. As Magistrate Scheindlin found, “the alleged failure to train and supervise is sufficiently egregious to be labelled grossly negligent or to warrant a finding of a deliberate indifference to plaintiff’s constitutional rights.” Report and Recommendation at 11; see Owens v. Haas, supra.

Magistrate Scheindlin found, and I agree, that plaintiff has raised triable issues of fact “as to the City’s failure either to adopt an adequate policy or to provide adequate training with regard to the handling of exculpatory evidence.” Report and Recommendation at 11. Because triable issues of fact exist, defendant’s objection to Magistrate Scheindlin’s Report and Recommendation is overruled; and the Report and Recommendation is adopted in its entirety.

The parties are directed to continue discovery under the guidance of Magistrate Scheindlin. At the close of discovery, defendants are free to renew the motion for summary judgment. Any such motion, by either party, shall be submitted to Magistrate Scheindlin for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B).

SO ORDERED.

REPORT AND RECOMMENDATION

May 14, 1985.

SHIRA A. SCHEINDLIN, United States Magistrate.

1. PROCEDURAL BACKGROUND

Plaintiff, Nathaniel Carter brings this civil rights action pursuant to 42 U.S.C. § 1983 (“1983”). Plaintiff seeks compensatory damages, punitive damages and reasonable attorney’s fees for his wrongful conviction and confinement under color of state law in violation of the Sixth, Eighth and Fourteenth Amendments. This case was referred to me by the Honorable Joseph M. McLaughlin for a Report and Recommendation on defendants’ motion pursuant to Fed.R.Civ.P. 12(b)(6) for an order dismissing the complaint against defendants Maguire and the City of New York, or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56.

II. FACTUAL BACKGROUND

On September 15, 1981, Clarice Herndon was stabbed to death in her home in Cambria Heights, New York. Numerous wounds were inflicted, and the police officers who responded to the scene reported that the interior of her home was covered with blood.

On his way to the scene, defendant Walter Steele, a police officer, observed a black male running down the street whose shirt was covered with blood and whose description did not match that of plaintiff. (¶ 14). Police officers Henry Harrison, William Fredericks and Michael Miele, all named defendants who were investigating the murder under the supervision of defendants Lieutenant Thomas Ahearn and Sergeant Stanley Andron, interviewed a young witness who also saw a black man running down the street near the victim’s home soon after the incident. (¶ 15). This man also wore bloody clothes and his description did not match that of plaintiff.

During the investigation of Ms. Herndon’s murder, defendant William Fredericks, a detective, interviewed Judith Cooper, a neighbor of the victim. (H 17). Ms. Cooper told Detective Fredericks that shortly after the murder, she had heard Delissa Durham, plaintiff’s ex-wife and the victim’s foster daughter, talking to two men, neither of whom matched plaintiff’s description. (¶ 17). Ms. Cooper claimed that she overheard Ms. Durham ask these two men to pick up Nathaniel Carter, Jr., plaintiff’s son, from school. (11 17). Ms. Cooper then observed the men leaving, presumably to carry out this task. (¶ 17). Soon after the murder, a black male arrived at the local elementary school to pick up Nathaniel Carter, Jr. (1118). At the trial, plaintiff claimed that he did not pick up the child, and that he was in Ossining, New York at the time of the crime. In refuting plaintiff’s alibi, the prosecution presented testimony that the black male who picked up Nathaniel Carter, Jr. at the school was the plaintiff. (1118).

Defendant Harrison interviewed Delissa Durham on September 15, 16 and 18, 1981. (II 20). On September 18th, Ms. Durham accused the plaintiff of the murder. Defendant Harrison arrested the plaintiff on September 19, 1981, (1120), and on September 23, 1981 a Queens County Grand Jury indicted plaintiff on charges of Second Degree Murder, Third Degree Assault and Three Counts of First Degree burglary. (H 12).

At the trial, defendant Harrison testified about his investigation of the crime and the questioning of Ms. Durham. (¶ 21). Plaintiff alleges that certain information concerning Harrison was deliberately not disclosed to Carter’s attorneys. This information may have affected Harrison’s credibility. (1121)

On June 5, 1982, after a jury trial before Hon. John J. Leahy, plaintiff was convicted of Second Degree Murder for the death of Clarice Herndon. (1112). On September 13, 1982, Justice Leahy sentenced the plaintiff to twenty-five years to life imprisonment. (1112).

After plaintiff was convicted, the Commissioner of the Peekskill Police Department, Walter Kirkland, conducted an independent investigation of the murder. (1125). In late 1982, after uncovering what he thought was substantial evidence that the plaintiff was not involved in the crime, he met with defendants Ahearn and Andron. (1125). Mr. Kirkland urged them to reopen the case, and made the information he had acquired available to them. (H 25). They refused and undertook no further investigation. (11 25).

Finally, on January 25, 1984, after plaintiff had been incarcerated for twenty-eight months, Delissa Durham admitted under oath in Supreme Court, Queens County that she, not plaintiff, had murdered Ms. Herndon. (1113). She further testified that plaintiff had no involvement in the crime. (II13). On the basis of this testimony and an investigation by the Queens County District Attorney’s office and the Legal Aid Society, Justice Leahy granted plaintiff’s motion to set aside his conviction and vacated his sentence. (1113).

Plaintiff alleges that the evidence concerning the fleeing males was exculpatory in nature. (II 16). He further claims that he was entitled to production of such evidence prior to his trial. (11 16). Moreover, plaintiff asserts that the evidence was deliberately and purposefully suppressed by defendants Harrison, Fredericks, Miele, Steele, Ahearn, Andron and other unknown agents and employees of the City of New York because it was not delivered in useable form to either the District Attorney or to plaintiff before or during the trial. or 16).

Plaintiff also alleges that the statements of Judith Cooper, the neighbor, were exculpatory. The police, therefore, were also required to produce these statements either to plaintiff or to the District Attorney before or during trial and failed to do so. (¶ 19).

In addition, plaintiff claims that defendants City of New York and former Commissioner MaGuire failed to set forth rules and regulations concerning the proper handling of exculpatory evidence. (¶ 23). They also allegedly failed to properly train and supervise the defendant officers to ensure that they followed the proper procedure of recording exculpatory evidence and delivering it to the District Attorney. (II 22).

Finally, plaintiff alleges that defendants’ investigation of the murder was so inept that it constituted either a reckless disregard for or a deliberate indifference to plaintiff’s mental and physical well-being and his right to be free from wrongful confinement, or both. (A 24). As a result of the shoddy investigative work, plaintiff claims he suffered severe psychological, physical and personal damages, some of which may be permanent. 11 26).

Plaintiff has also brought two pendent state claims against defendants. He alleges that defendants’ suppression of and failure to disclose exculpatory evidence and their inept investigation constituted a failure to use reasonable care in performing their official duties, which in turn resulted in plaintiff’s wrongful conviction and imprisonment. (II30). He also claims that such activities constitute malicious prosecution with the intent of procuring plaintiff’s conviction despite his innocence. (¶ 33).

III. DISCUSSION

A. City’s Motion for Summary Judgment

1. Motion to Dismiss May be Treated as a Motion for Summary Judgment.

Defendant City has moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) or in the alternative, Fed.R.Civ.P. 56. Because I have considered matters outside the pleadings, the motion is considered as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(b).

To succeed in its summary judgment motion, defendant City has the burden of showing that no genuine issue as to any material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). However, the party opposing the summary judgment motion may not rest upon the mere allegations or denials of his pleading. His response must instead set forth specific facts which show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). In determining whether such an issue exists, the court is constrained to draw all reasonable inferences of fact in favor of the party opposing summary judgment. Rhoads v. McFerran, 517 F.2d 66, 68 (2d Cir.1975). The court’s role is not to try issues of fact, but “only to determine whether there are issues to be tried.” Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir.1975).

2. Elements of a § 1983 Claim Against a Municipality

Under Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a plaintiff may recover against a defendant municipality on a § 1983 claim if he can demonstrate that the defendant’s “policy or custom” caused his injury. In order to prove municipal liability, the plaintiff in a § 1983 action must show two things: “... first, that the governmental entity maintained or practiced an unconstitutional or unlawful ‘policy’ or ‘custom’ and second that that policy or custom ‘caused’ or was the ‘moving force’ behind the violation.” Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir.1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980) (citations omitted).

In a more recent case, the Second Circuit held that

to hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.

Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983).

3. Has the Plaintiff Alleged an Official Policy or Custom?

The Second Circuit has stated that an official policy can be inferred “from the omissions of a municipality’s supervisory officials, as well as from its acts.” Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.), cert. denied sub nom. Turpin v. City of West Haven, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). An official policy resulting from the acquiescence of a municipality, may not ordinarily be inferred from a single incident of illegality. Id. at 202. See also Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983). However, under extraordinary circumstances courts have made an exception to this rule.

In Owens v. Haas, 601 F.2d 1242 (2d Cir.), cert. denied sub nom. Nassau County v. Owens, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979), a prisoner brought a § 1983 action against individual prison guards and Nassau County for damages resulting from a beating he received while in custody. The district court dismissed his complaint as to the county because it failed to allege an official policy or pattern of constitutional violations by the county as required by Monell. Owens, 601 F.2d at 1245. In reversing the dismissal, the Second Circuit laid out the guidelines for § 1983 claims against municipalities that are based on alleged police misconduct.

A municipality may be held liable if its failure to supervise or its lack of a proper training program “was so severe as to reach the level of ‘gross negligence’ or ‘deliberate indifference’ to the deprivation of the plaintiff’s constitutional rights.” Owens, 601 F.2d at 1246 (citing Leite v. City of Providence, 463 F.Supp. 585, 590-91 (D.R.I.1978)).

Defendant City, however, argues that plaintiff has failed to demonstrate the existence of such a defective policy. It argues that (a) the complaint is lacking in requisite specificity (Defendants’ Memorandum at 6-9) and (b) that the alleged failure to supervise is insufficient for finding a municipality liable because plaintiff has not demonstrated that the City’s failure to develop a policy as to the presentation and production of exculpatory evidence rises to the level of “gross negligence” or “deliberate disregard.” (Defendant’s Memorandum at 10-11).

Batista v. Rodriguez, is instructive with regard to the City’s argument that plaintiff’s pleadings lack specificity.

A plaintiff, suing under § 1983, while obligated to make ‘a short and plain statement’ of the essential elements of his claim in his complaint, Fed.R.C.P. 8(a), is not required to set out the facts in detail. The complaint will survive dismissal ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99, 101-102, 2 L.Ed.2d 80] (1957).

Batista, 702 F.2d at 397 (further citations omitted). Here, plaintiff has alleged four specific instances of the suppression of exculpatory information. . (Amended Complaint If s 14, 15, 16, 17, 18, 19, 21).

Plaintiff has also submitted an affidavit that tends to support the allegations in the complaint—that the City has failed to adopt an appropriate policy or provide sufficient training with regard to the preservation and production of exculpatory evidence by individual members of the police force. See Affidavit of W.H. Richmond, III, Esq. Viewed in a light most favorable to plaintiff, this affidavit raises a reasonable inference that the specific acts of suppression alleged here are not isolated instances, but rather part of a continuing series, such that a policy or custom may be established.

Drawing all reasonable inferences of fact in favor of the plaintiff, see Rhoads, 517 F.2d at 68, plaintiff has set forth sufficient evidence to raise a triable issue of fact as to the City’s failure either to adopt an adequate policy or to provide adequate training with regard to the handling of exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or both. Here the deliberate suppression of exculpatory material, if proved, resulted in 28 months of wrongful incarceration. Thus, the alleged failure to train and supervise is sufficiently egregious to be labelled “grossly negligent” or to warrant a finding of a “deliberate indifference” to plaintiff’s constitutional rights.

4. Has the Plaintiff Demonstrated the Requisite Causation?

a. The Degree of Negligence

The degree of negligence that plaintiff must plead and eventually prove is problematic. The Supreme Court has noted that

[n]othing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights ... Section 1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never been found by this Court to contain a state-of-mind requirement.

Parratt v. Taylor, 451 U.S. 527, 534, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). The Court went on to state that earlier case law suggested that

§ 1983 affords a “civil remedy” for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind.

Id. at 535, 101 S.Ct. at 1913 (emphasis added).

There is a dispute in the appellate courts as to the meaning of the Parratt decision. It is unclear whether § 1983 requires proof of “gross negligence” or whether a finding of “mere negligence” would be sufficient to sustain a finding of liability. The Second Circuit has not yet ruled on the effect of Parratt on § 1983 actions.

Since Parratt, the Sixth and Ninth Circuits have held that a showing of mere negligence is sufficient to sustain a cause of action. Brandon v. Allen, 719 F.2d 151, 154 (6th Cir.1983), rev’d on other grounds sub nom. Brandon v. Holt, — U.S. -, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) (in § 1983 action against individual defendants alleging assault by police officer, liability based on negligence is sufficient); Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir.1982) (in § 1983 claim against municipalities and individual defendants alleging inadequate care of deceased inmate, allegation of mere negligence sufficient in light of Parratt). On the other hand, the Fifth Circuit has considered and rejected Parratt’s application to municipal liability. Languirand v. Hayden, 717 F.2d 220, 227 (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984) (applicable standard is whether municipality’s failure to train a police officer properly constituted gross negligence amounting to conscious indifference).

I would follow the view of the Fifth Circuit. A municipality should not be held liable solely upon a showing of mere negligence. As the Fifth Circuit noted, should municipal liability be imposed upon a showing of mere negligence, then Languirand, 717 F.2d at 224 n. 6 (quoting Parratt, 451 U.S. at 544, 101 S.Ct. at 1917). Thus, plaintiff must make a showing that the City’s alleged failure to adopt an adequate Brady policy and to train its employees in their Brady obligations was an omission that amounted to gross negligence or deliberate indifference to plaintiff’s constitutional rights.

any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983.

b. Proof of Causation

The City argues that it did not and could not have failed to establish a policy regarding the preservation of exculpatory evidence because the Police Department has a written policy which requires that all relevant evidence be recorded. Defendant’s Memorandum at 10. The City next argues that because plaintiff’s complaint alleges that the individual defendants “deliberately and purposefully” suppressed exculpatory evidence, the City’s policy could not have caused the illegal conduct. Defendant’s Supplemental Memorandum at 4. The City further argues that “[decisions as to whether evidence is exculpatory are too speculative to to be realistically made during an investigation.” Defendant’s Reply Memorandum at 3. It is the City’s view that a police officer not versed in the law cannot differentiate exculpatory from other types of evidence, and it is therefore too burdensome to require the separate recording of exculpatory evidence. Finally, the City argues that because the allegedly withheld exculpatory evidence was uncovered before plaintiff was a suspect, a fortiori the evidence was not “exculpatory” as to plaintiff. (Defendant’s Letter Memorandum of Feb. 20, 1985).

The City’s reliance on the written guidelines is misplaced. Sections of the “Detectives Guide” cited in the affidavit of Richard J. Nicastro, Chief of Detectives, New York City Police Department, do not require that all evidence be recorded, merely all “relevant evidence.” See § 205-1 (“record relevant statements made by suspects and witnesses”). The recording of “all relevant evidence” does not accomplish the goal of recording and preserving exculpatory evidence. A police officer investigating a crime is likely to assume that relevant evidence includes only inculpatory information.

In answer to defendant’s next argument, it is my view that “deliberate and purposeful” suppression of the exculpatory evidence would not preclude a finding that a policy of defendant City caused plaintiff’s injuries. Plaintiff points out that “[t]he evidence might ultimately reveal that the officers knew of the existence of the exculpatory evidence and failed to disclose it because they were unaware of their constitutional obligation to do so.” Plaintiff’s Supplemental Memorandum at 4.

It is unclear from the papers before the court whether the allegedly exculpatory information discovered during the investigation was recorded. If it was, then the defendant officers had a duty to turn it over to the district attorney prior to trial. If it was not recorded, a duty to disclose the information might still have arisen if, for example, the officers continued to assist in the investigation or testified at trial.

The answer to the City’s argument concerning the speculative nature of classifying evidence is obvious. If the City trained its police officers as to the preservation and disclosure of Brady material, officers investigating a crime would not be forced to speculate on the exculpatory nature of such evidence. It is precisely the thrust of plaintiff’s argument that had they been so trained, the evidence in question here would have been disclosed. The allegedly suppressed exculpatory evidence in this case is not highly technical, and police officers need not be versed in the law to know, for example, that the observation of another possible suspect fleeing the crime scene tends to exculpate a defendant. A police officer should not be excused for failing to report exculpatory evidence merely because he did not immediately recognize its exculpatory nature.

Finally, if all evidence is gathered and recorded, the exculpatory nature of a certain portion becomes evident when the police focus on a particular suspect. It is at that point that the police officer has a duty to bring to the attention of his superiors or the prosecutor any evidence that might exculpate the defendant.

While the Second Circuit has not spoken on the issue, there is authority which holds that a Brady violation states a cause of action under § 1983. McDonald v. State of Illinois, 557 F.2d 596, 603 (7th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453 (1977) (plaintiff wrongfully convicted of homicide has § 1983 claim for Brady violation where government or agents frustrate his attempts to preserve possibly exculpatory information); Hilliard v. Williams, 516 F.2d 1344, 1351 (6th Cir.1975), vacated on other grounds, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 729 (1976) (plaintiff wrongfully convicted of homicide had § 1983 claim for withholding of exculpatory evidence in violation of Brady ). In accord is a recent case, Lopez v. Ruhl, 584 F.Supp. 639, 646 (W.D.Mich.1984), where a § 1983 claim survived against an officer who withheld exculpatory information from the prosecutor, court and defendant.

Defendant City has cited one authority to the contrary. In Fulford v. Klein, 529 F.2d 377 (5th Cir.1976), aff'd en banc, 550 F.2d 342 (5th Cir.1977), the court noted that “Brady did not create any cause of action independent of the validity of the conviction.” Id. at 381. Fulford, however, is distinguishable. There, plaintiff brought his § 1983 claim while his conviction was still valid. Thus the court found that any § 1983 claim plaintiff might have had was not properly before the court. Id. at 382. Here, to the contrary, plaintiff has been exonerated of the criminal charges.

The City also asserts that Brady rights, like Miranda rights, are not specifically guaranteed by the Constitution and that an action in damages therefore cannot lie under Brady. Defendant’s Supplemental Memorandum at 10-11. However, the similarity between Miranda and Brady does not extend to the application of remedies. Miranda violations can be cured by the exclusion of unlawfully obtained incriminating statements. In the case of a Brady violation, wrongfully suppressed evidence may not even be discovered by the defense until after a trial, conviction and, as here, wrongful incarceration.

In light of McDonald and Hilliard, then, I find that a violation of a plaintiffs Brady rights is sufficient to state a cause of action under § 1983. Plaintiff here alleges specific instances of the withholding of exculpatory evidence. Plaintiff’s Amended Complaint TTÍI14, 15, 16, 17, 19, 21. These detailed allegations set forth several violations of Brady.

In sum, plaintiff has successfully shown that there are genuine issues of fact that must be resolved at trial. The Second Circuit recently articulated the applicable standard in the form of a warning:

While ‘mere conclusory allegations or denials’ are insufficient to withstand a motion for summary judgment once the moving party has set forth a documentary case, ... caution should be exercised in granting summary judgment where state of mind is in issue or when the party opposing the motion has been denied relevant discovery.

Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) (emphasis added) (citations omitted).

Plaintiff has alleged that material, exculpatory evidence was suppressed in not one, but rather in four instances. Plaintiff has further demonstrated that the City may well have failed to adopt an adequate policy regarding the preservation and production of exculpatory evidence. There is no doubt that such a failure, if it existed, constitutes gross negligence because of its potentially egregious consequences. See e.g., Daniels v. Miele, 83 CV 683 (CPS) (E.D.N.Y.) (failure to produce exculpatory evidence resulted in approximately four years incarceration); Affidavit of Warren Richmond, Esq. dated December 7,1984 (Police Department Lieutenant testified at deposition that he would not routinely report all witness identifications made at a lineup). Finally, plaintiff has demonstrated a causal connection between the alleged suppression of exculpatory evidence and plaintiff’s wrongful conviction and incarceration.

Therefore, I respectfully recommend that the City’s motion for summary judgment be denied at this time and that the parties complete their discovery. The City may then renew its motions.

B. The Summary Judgment Motion by Defendant McGuire

1. Elements of § 1983 Claim Against Supervisory Official

The standard for holding a supervisory official liable under § 1983 for violating a plaintiff’s constitutional rights was set forth in Johnson v. Glide, 481 F.2d 1028, 1034 (2d Cir.), cert. denied sub nom. Employee-Officer John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973):

When monetary damages are sought under § 1983, the general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.

Id. See also, McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978); Duchesne v. Sugarman, 566 F.2d 817, 830 (2d Cir.1977).

Even though a city official may not be held liable under the theory of respondeat superior, the Court stated in Monell that an official could be held liable, just as a municipality could be, if a causal link existed between the execution of official policy and the constitutional violation. See Monell, 436 U.S. at 691-92, 98 S.Ct. at 2036-37.

In a recent § 1983 action, a plaintiff sued the City of Atlanta and the Commissioner of Public Safety for the use of excessive force resulting in an arrestee’s death. See McQurter v. Atlanta, 572 F.Supp. 1401, 1419 (N.D.Ga.1983), appeal dismissed, 724 F.2d 881 (11th Cir.1984). Because the court found that defendants Public Service Commissioner and City failed to ensure proper training of supervisory police officers in the use of deadly force, they were held liable for the arrestee’s death. Id. at 1421.

The court in McQurter also stated that where the plaintiff alleges a failure to train or supervise as the basis for a § 1983 claim, the failure of the supervisory official must rise to the level of “gross negligence” or “recklessness.” McQurter at 1420. See also Owens v. Haas, 601 F.2d at 1246. In order to survive the summary judgment motion, therefore, the opposing party

must bring forth specific facts through affidavits, pleadings, depositions, answers to interrogatories, admissions on file or other reliable means to show that a genuine issue of material fact exists.

Harlee v. Hagen, 538 F.Supp. 389, 393 (E.D.N.Y.1982). See also Perma Research and Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). Thus plaintiff must set forth facts to show that there is a genuine issue of fact as to former Commissioner McGuire’s “gross negligence” or “deliberate indifference” in failing to train or supervise officers of the New York City Police Department.

2. Discussion

In support of his instant motion, former Commissioner McGuire argues that plaintiff has failed to allege the Commissioner’s personal involvement in either the Herndon investigation or the conduct of the defendant police officers. Defendant’s Memorandum at 3. McGuire further claims that his liability cannot be based on a respondeat superior theory, or solely on his position as police commissioner. Id. at 3-4. He also asserts that plaintiff has failed to allege the Commissioner’s personal involvement in the police department’s training program, and that the present departmental guidelines properly require the preservation of all information discovered during an investigation. Defendant’s Reply Memorandum at 5. Finally, defendant McGuire notes that plaintiff has failed to allege either gross negligence or deliberate indifference on his part, an allegation essential to pleading a prima facie § 1983 case against a supervisory official. Defendant’s Memorandum at 4-5.

Defendant McGuire has not met his burden. The reasoning applied in McQurter is applicable here. While it is true that plaintiff alleges no personal involvement by McGuire in either the Herndon investigation or the department’s training program, plaintiff does allege that McGuire was directly responsible for the Department’s failure to train the defendant police officers as to the preservation and production of exculpatory evidence. Plaintiff’s Memorandum at 18. It is also alleged that his omissions rise to the level of “reckless disregard” or “deliberate indifference” with regard to violations of plaintiff’s constitutional rights. Amended Complaint 111124, 19.

I find that the plaintiff has sufficiently alleged McGuire’s responsibility for the alleged constitutional violation. Because I have found that genuine issues of fact exist as to the City’s liability in this action, and because defendant McGuire was directly responsible for the formation of police department policy at the time of the incident, I am compelled to conclude that the claim against him should survive this motion. A municipality and its officials are necessarily linked when potential liability is based on a failure in policy. Accordingly, I respectfully recommend that the motion for summary judgment by defendant McGuire be denied. The parties should complete their discovery at which time defendant McGuire may renew this motion.

C. Plaintiff’s Pendent State Claims

Because plaintiff has alleged a § 1983 claim, I need not decide the issue of pendent party jurisdiction.

The Second Circuit has held that [t]he test for determining whether a court having jurisdiction over a federal claim may properly assume jurisdiction over a pendent state claim is whether the claims derive from a common nucleus of operative fact. United Mine Workers v. Gibbs, 383 U.S. 715, 725-27 [86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218] (1966).

Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, Local 10, 605 F.2d 1228, 1247 (2d Cir.1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980). The allegations of the instant case meet this test. The defendant City has raised no argument to the contrary.

Pendent jurisdiction is a matter of discretion. Lefrak v. Arabian Oil Co., 487 F.Supp. 808, 825 (E.D.N.Y.1980). Considering the interrelated nature of the claims, judicial economy and fairness to the litigants, I recommend that the plaintiffs state claims that allege negligent failure of officials to carry out their duties and malicious prosecution should remain before this court.

IV. CONCLUSION

Because plaintiff has sufficiently alleged that the City failed to adopt an adequate policy with regard to the preservation and production of exculpatory evidence and that this failure caused the suppression of evidence and led to plaintiffs wrongful incarceration, I respectfully recommend that the City’s motion for summary judgment be denied. Because plaintiff has sufficiently alleged that Commissioner McGuire was directly responsible for the formation of police department policy at the time the evidence was allegedly suppressed, I also recommend that his motion for summary judgment be denied. In addition, I respectfully recommend that this court retain jurisdiction over plaintiff’s pendent state claims.

A copy of this Report and Recommendation is being mailed today to all parties, who are hereby advised that objections to the report may be served and filed with the district court, with a copy to me, within ten (10) days.

      . The facts as stated here are taken from the plaintiffs amended complaint where noted. I take these facts to be true for the purposes of this motion. Where both parties are in agreement as to an occurance, no citation is listed.

      . See pp. 757-758, infra, for a discussion of the Brady doctrine and § 1983. A recent affidavit submitted by defendants alleges that the supposedly suppressed exculpatory information discovered during the investigation was in fact recorded and delivered to plaintiff’s counsel at the criminal trial. The affidavit notes that both descriptions of fleeing men were broadcast and recorded on a "Sprint” printout sheet. ¶ 4. This "Sprint” sheet was delivered to plaintiff's counsel. ¶ 5. Therefore, defendant claims that no factual grounds exist on which plaintiff can base his claim of a Brady violation for withholding information discovered during the investigation. It should be noted that if plaintiff's counsel did indeed receive the exculpatory evidence prior to trial, in sufficient detail to be useful, there would be no basis for plaintiff’s claims.

      . In Parratt, the Court eventually reversed summary judgment for the plaintiff on the ground that state tort law provided sufficient alternative means to redress the plaintiff’s alleged due process deprivation. Thus the Court’s discussion of § 1983 standards of negligence is dictum.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), held
      that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

        Id. at 87, 83 S.Ct. at 1196-97.

      . There is little doubt that police officers have a Brady obligation to disclose exculpatory information. Freeman v. Georgia, 599 F.2d 65, 68-69 (5th Cir.1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 641 (1980); United States v. Butler, 567 F.2d 885, 890 (9th Cir.1978); United States v. Bryant, 439 F.2d 642, 647-48 (D.C.Cir.1971); Barbee v. Warden, 331 F.2d 842, 845 (4th Cir.1964). Chief Judge Weinstein of the Eastern District of New York wrote, in the context of a habeas corpus petition, that
      [t]he Second Circuit rule is that information in the hands of someone who can be viewed as "the arm of the prosecutor” triggers the application of the Brady requirement of disclosure.

        Pina v. Henderson, 586 F.Supp. 1452, 1456 (E.D.N.Y.1984) (citations omitted). In any case, defendant City apparently concedes this point by citing Hauptmann v. Wilentz, 570 F.Supp. 351, 389 (D.N.J.1983) for the proposition that the Brady disclosure duty falls on the state as a whole. Defendant’s Supplemental Memorandum at 12.

      . Moreover, the City’s arguments concerning the practical consequences of imposing Brady duties on investigating officers do not apply to one of plaintiff's alleged acts of suppression. Plaintiff alleges that certain information concerning the defendant Harrison, a trial witness, was not disclosed to the defense. This information may have affected Harrison’s credibility. Amended Complaint ¶ 21. Defendant cannot argue that the decision to disclose such information imposed any burden on or need for speculation by defendant officers.

      . On remand from the Supreme Court, the Sixth Circuit vacated its judgment against defendant prosecutor on immunity grounds, but allowed plaintiff’s judgment against the individual police officer to remain in effect. Hilliard v. Williams, 540 F.2d 220, 221-22 (6th Cir.1976).

      . Research has revealed no instance of a Police Commissioner being dismissed from a lawsuit prior to trial when a municipality is required to proceed.