author: ROBERT J. McNICHOLS, Chief Judge.

text:
    D. Rick KARTEVOLD; Audrey Abrahamson; William R. Carl; Thomas L. Hedequist; Joseph F. Greene; Lyle E. Hattenburg; Daniel J. Kern; Gary J. Mauri; Jack L. Moon; Charles L. Oliver; James H. Panknin; Janice M. Panknin; James R. Richards; Michael D. Van Heel; and Kevin J. Von Steuben, Plaintiffs, v. SPOKANE COUNTY FIRE PROTECTION DISTRICT NO. 9, Defendant.
    No. C-85-391.
    United States District Court, E.D. Washington.
    Jan. 21, 1986.

      Steven B. Frank, Frank and Rosen, Seattle, Wash., for plaintiffs.
    Richard J. Schroeder, Dellwo, Rudolf & Schroeder, Spokane, Wash., for defendant.
   ORDER

ROBERT J. McNICHOLS, Chief Judge.

This action was commenced on May 23, 1985 by fifteen employees of Spokane County Fire Protection District No. 9 pursuant to the private enforcement provisions of the Fair Labor Standards Act [FLSA], 29 U.S.C. § 216. Plaintiffs seek an award for unpaid overtime and for liquidated damages in an amount equal to such back pay. Currently pending are cross-motions for summary judgment on the issue of liability only.

I. Background

The essential facts are straight-forward and not in dispute. Over the span of years, the fire district entered into collective bargaining agreements from time to time with its employees through their union. The provisions of the CBA giving rise to this litigation contemplated that fire fighters would work “24 on/48 off.” That is, employees would serve a single shift of 24 continuous hours, and then take two full days off. The practical import of this arrangement was that over the course of a typical three-week period, a fireman would serve seven complete days, or 168 hours, and yet would receive no overtime. Facially, the failure to pay overtime would appear to contravene the 1974 amendments to the. FLSA.

Shortly after the effective date of the amendments, however, the Supreme Court decided National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) which addressed FLSA minimum wage and overtime provisions in precisely the same context as presented by the facts at bar. Noting first that the Commerce Clause vested plenary power in Congress over matters affecting interstate commerce, the Court nonetheless held that the Reserved Powers Doctrine embodied in the Tenth Amendment precluded use of that ostensibly plenary authority when an attempt is made to regulate “States qua States,” acting in their sovereign capacity, “in areas of traditional governmental functions.” Id. at 851-52, 96 S.Ct. at 2474. Finding this test fully satisfied where Congress invades a local government’s prerogatives in such traditional local concerns as public safety, the Court held the minimum pay and overtime provisions of the FLSA unconstitutional as applied to States and their political subdivisions. Id. at 852, 96 S.Ct. at 2474.

On February 19, 1985 the Court readdressed the core teaching of National League of Cities in Garcia v. San Antonio Metro. Transit Authority,—U.S.-, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). Holding the “traditional governmental function” prong of the test enunciated in National League of Cities “unsound in principle and unworkable in practice,” the Court expressly overruled its earlier position, and found the subject FLSA provisions wholly consonant with precepts of federalism. 105 S.Ct. at 1016.

Plaintiffs concede that the CBA currently in place complies with FLSA requirements and seek damages only prior to its effective date of April 15, 1985. Adding yet another layer of complexity is Congress’ response to Garcia. P.L. 99-150, the Fair Labor Standards Amendments of 1985, became law on November 13, 1985. Section 2(c) of that enactment relieves employers such as defendant in the instant action from liability incurred for failure to abide by the 1974 amendments if such violation occurred before April 15, 1986. However, the effective date of this section is not until April 15, 1986. With this quagmire in place, we commence our inquiry.

The parties are in agreement on several issues. First, by operation of Garcia, the fire district no longer enjoys immunity from FLSA overtime provisions. Second, the longstanding common law rule is that a decision reformulating federal civil law will usually be applied retroactively, subject to certain delineated exceptions. See generally, Orland & Stebing, Retroactivity in Review: The Federal and Washington Approaches, 16 Gonz.L.Rev. 855, 855-72 (1981). Third, the determinative test for viewing issues relating to retroactive versus prospective application is found in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Beyond such limited agreement on general principles, the parties sharply dispute each other’s contentions regarding retroactive application of Garcia.

II. Retroactivity of Garcia in light of Chevron

Chevron enunciated a three prong test, the satisfaction of which would militate in favor of prospectivity:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed, ... Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.”____ Finally, we have weighed the inequity imposed by retroactive application, for “[wjhere a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”

Id. at 106-07, 92 S.Ct. at 355 (citations omitted).

A. Efficacy of National League of Cities pr e-Garcia:

Plaintiffs argue that the rule emanating from National League of Cities, which exempted States and their subdivisions from the minimum pay and overtime requirements of the FLSA when acting in their sovereign capacities, had been undergoing a steady and foreseeable erosion preGarcia. In particular, plaintiffs point to EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), which dissolved such exemption insofar as the Age Discrimination in Employment Act [ADEA] was concerned. It is argued that Garcia is merely a logical extension of EEOC, or at least, that the ultimate result of Garcia was readily foreseeable. There are a number of reasons why this Court cannot agree.

First, as plaintiffs concede, the “clearly foreshadowed” language of Chevron applies by its own terms only to cases of first impression. Whatever else might be said of National League of Cities and its sequelae, it can hardly be claimed that Garcia was a matter of first impression. Thus, the relevant inquiry is whether Garcia represented a break from “clear past precedent.”

Interestingly, there has been only one change in the complement of the Supreme Court since National League of Cities was decided some ten years ago, and that was when Justice O’Connor was appointed to fill the vacancy left by Justice Stewart. With respect to issues presented by Garcia and National League of Cities, both 5-4 decisions, these two Justices appear to be of the same mind. Thus, it is an easy task to discern the basis underlying the Court’s 180-degree turn. Justice Blackmun was the swing vote. Concurring in National League of Cities, he switched sides entirely in Garcia. Indeed, he wrote the opinion. As observed by defendant, perhaps a scholar of the Court could have analyzed Justice Blackmun's writings over the course of the intervening decade and predicted the outcome in Garcia. To attribute such powers of prognostication to the average citizen, or even to the typical lawyer for that matter, is another question entirely.

The focus, then, must be on the teachings of the Court as expressed in its written decisions during the intervening period. Plaintiffs’ reliance on decisions such as EEOC is not well-placed. Ignoring Justice Stevens’ clarion call to overrule National League of Cities, as expressed in his concurrence, the majority (which had been the minority in National League of Cities), was content to treat the earlier case as controlling, and to merely distinguish EEOC on the grounds that bringing the States under the umbrella of the ADEA would not “ ‘directly impair’ the State’s ability to ‘structure integral operations in areas of traditional governmental functions.’ ” 460 U.S. at 239, 103 S.Ct. at 1062. Indeed, the Court went further by commenting that its ruling would not prevent employment decisions predicated upon age, but only that the States would hereafter be. constrained by the objective criteria set forth in the ADEA. Id. at 239-40, 103 S.Ct. at 1062-63.

Finally, we come to Garcia. If there was any feeling among observers of the Court that National League of Cities had been vitiated by intervening decisions, it was lost on the lawyers who argued the Garcia case. The Court itself had to solicit an attack upon the continuing vitality of National League of Cities,—U.S.-, 104 S.Ct. 3582, 82 L.Ed.2d 880 (1984). After supplemental argument, the majority discarded the “traditional governmental functions” prong of the National League of Cities test by holding such inquiry to be both “unsound” and “unworkable.” 105 S.Ct. at 1016. Any doubt that Garcia represented a drastic turn-about is dispelled by Justice Powell’s dissenting opinion:

The Court today, in its 5-4 decision, overrules National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), a case in which we held that Congress lacked authority to impose the requirements of the Fair Labor Standards Act on state and local governments. Because I believe this decision substantially alters the federal system embodied in the Constitution, I dissent.
I.
There are, of course, numerous examples over the history of this Court in which prior decisions have been reconsidered and overruled. There have been few cases, however, in which the principle of stare decisis and the rationale of recent decisions were ignored as abruptly as we now witness. The reasoning of the Court in National League of Cities, and the principle applied there, have been reiterated consistently over the past eight years. Since its decision in 1976, National League of Cities has been cited and quoted in opinions joined by every member of the present Court.

105 S.Ct. at 1021 (footnote and citations omitted).

There is little room for arguing the proposition that National League of Cities met with less than unanimity in legal circles. To begin with, the majority’s opinion was dependent for its vitality upon Justice Blackmun’s somewhat reluctant concurrence in which he sought to impose an additional element in the form of a balancing test which would require a comparative analysis of federal and state interests. 426 U.S. at 856, 96 S.Ct. at 2476. Nor were the dissenters particularly gentle, characterizing the decision as “ill-conceived,” “devoid of meaningful content,” and “mischievous.” Id. at 867, 873 & 880, 96 S.Ct. at 2481, 2484 & 2487 (Brennan, J., dissenting). Strident cries of revisionism reverberated throughout the halls of academia. See EEOC v. Wyoming, 514 F.Supp. 595, 598 (D.Wyo.1981), rev’d, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) and authorities cited therein. The decision was bombarded with frontal attacks in subsequent opinions. See, e.g., EEOC, supra, 460 U.S. at 250, 103 S.Ct. at 1068 (Stevens, J., concurring) (National League of Cities is a “modern embodiment of the spirit of the Articles of Confederation.”).

For all of this manifest hostility, however, there is one truism which must control the instant inquiry. National League of Cities was the law. It was “clear precedent” within the meaning of Chevron, supra, from the date of announcement forward until struck down in Garcia. As noted by Justice Powell in his dissent in Garcia, National League of Cities had on occasion been distinguished and narrowed, but “there was no hint ... that National League of Cities —or its basic standard— was subject to the infirmities discovered today.” 105 S.Ct. at 1022.

Of necessity, the topic of National League of Cities ’ continuing vitality preGama will bear further discussion in relation to the third prong of Chevron; viz., equitable considerations. For purposes of viewing the first prong, however, the Court concludes that Garcia “established] a new principle of law ... by overruling clear past precedent on which litigants may have relied.” Chevron, supra, 404 U.S. at 106, 92 S.Ct. at 355.

B. Promotion of the Rule of Law:

The second Chevron prong directs the Court to look to “the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” 404 U.S. at 107, 92 S.Ct. at 355. There is no need to speculate on legislative intent in framing the 1938 Act. Congress spelled out its concerns in express language in 29 U.S.C. § 202. The courts have consistently recognized the benevolent motive of Congress to upgrade both conditions in the work place and the worker’s standard of living. See, e.g., Brennan v. Wilson Bldg., Inc., 478 F.2d 1090, 1094 (5th Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 156, 38 L.Ed.2d 105 (1973) and authorities cited therein. The rule remains today that the FLSA should be read broadly to accomplish its remedial objectives. See, e.g., Tony & Susan Alamo Foundation v. Sec. of Labor,— U.S.-, 105 S.Ct. 1953, 1959, 85 L.Ed.2d 278 (1985). However, no single prong of the Chevron test is dispositive. See People of Village of Gambell v. Hodel, 774 F.2d 1414, 1426-27 (9th Cir.1985); Barina v. Gulf Trading and Transp. Co., 726 F.2d 560, 563-64 (9th Cir.1984). Thus, while the second Chevron criterion favors plaintiffs’ position, it would be premature to end the inquiry at this juncture.

C. Equitable Considerations:

Chevron requires an examination into the practicalities of retroactivity by asking whether “substantial inequitable results” or “injustice” or “hardship” would be occasioned thereby. 404 U.S. at 107, 92 S.Ct. at 355. The precise economic impact of Garcia on the fire district cannot be ascertained on the current state of the record. Plaintiffs point to several sources of taxing authority conferred under state law which arguably would allow funds to be raised to pay for any judgment which might result. Defendant has countered that assertion by representing that: (1) the district is already drawing the maximum percentage of tax-base allowable under the general levy procedure; (2) the reserve fund reflected in the budget is not surplus money, but merely the carry-over from one budget year to the next which will be required to finance operations until the ensuing year’s taxes have been collected; and (3) any excess levy over the percentage provided for under the general levy procedure would ultimately require a favorable vote of the electorate.

Resolution of who has the better position would necessitate a detailed inquiry into the intricacies of the interplay among the various state statutes cited (most of which have yet to be construed by Washington courts), and would likely require an evidentiary hearing as well. Such an endeavor is unnecessary. Within the context of the question before the Court, merely framing the problem serves to illustrate the financial imponderables visited upon local government by Garcia. Aside from any issue over quantification of the fire district’s resources, there is a more basic reason why applying Garcia retrospectively would be inherently unfair not only to the litigants at bar, but to the entire system.

Implicit in the first Chevron prong is the notion that case law affords a foundation for day-to-day decision-making which is worthy of reliance. It is a rare transaction entered into by anyone in which the parties do not have in mind certain expectations which society would deem wholly warranted. Seldom if ever does the typical citizen consciously reflect on the source of such expectations, but there is no disputing the fact that in any jurisdiction grounded on common law development of legal principles, the source, either directly or indirectly, is to be found in judicial construction. The Supreme Court has recognized that the doctrine of stare decisis is not simply a mechanical tool employed by the judiciary to cut its work load. Rather:

We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations.

Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940).

That policy is disserved when thousands of public officials across the country, such as the fire district commissioners in the instant case, proceed in good faith to discharge their duty by entering into contractual agreements with their employees and on behalf of their constituency in reasonable reliance upon longstanding precedent, only to have their efforts declared retrospectively unlawful. It is unfair to the public officials, to their taxpayers, and to the system at large.

When a trial court assumes the task of deciding what is equitable and what is not in areas so broad and so impactive on the public interest as present here, there is a concurrent assumption of the risk that its conclusion will be deemed nothing more than ipse dixit Thus, there is some solace to be gained in the observation that Congress has already weighed the equities at stake and determined as a matter of national policy that the harm to local governments caused by immediate compliance with Garcia outweighs any interest public employees may have in immediate access to FLSA benefits. See Section III infra.

D. Summary:

It bears noting that Garcia did not involve a minor point of fine-tuning the law. On the contrary, the decision raised and decided issues which go to the conceptual heart of defining the nature of government. Garcia has been characterized in briefing as “just another skirmish” in a see-sawing battle which has raged since the founding days of the Nation. No doubt this is true, for as the members of the dissent in Garcia openly declare, they will reinstate National League of Cities at the earliest opportunity. 105 S.Ct. at 1033 (Rehnquist, J., dissenting). It is precisely because of the fundamental nature and tulmultuous quality of this ongoing tug-of-war with basic constitutional values that the Court feels obliged to place heavy emphasis on the first prong of Chevron, and to consider the sharp break represented by Garcia as impactive on the third prong as well.

Finally, plaintiffs argue that even if Garcia is prospective only, they are entitled to an award from February 19, 1985, the date of decision, until April 15, 1985 when the current CBA became effective. The fire district contends that the relevant date is not the time the decision was announced, but at the termination of appellate proceedings on April 15, 1985 when rehearing was denied.—U.S.-, 105 S.Ct. 2041. No authority has been cited for either proposition. Cf, Rules 52.2 & 52.3, Rules of the Supreme Court of the United States. Even assuming the technical accuracy of defendant’s construction, however, one might question whether the termination date of appellate proceedings is necessarily controlling in weighing issues pertaining to retroactivity. After all, announcement of Garcia could not help but reduce a litigant’s reliance on National League of Cities. Were it necessary to resolve this issue, further briefing would likely be indicated. In light of the alternative basis for disposition of the instant motions presented below, the matter need not be reached.

III. Fair Labor Standards Amendments of 1985

For all of the impressive effort demonstrated by counsel in pursuing and opposing the instant motions, scant attention has been extended P.L. 99-150, reprinted in, U.S.Code Cong. & Ad.News, 99 Stat. 787 (1985). Section 2(c) thereof provides that:

No State, political subdivision of a State, or interstate governmental agency shall be liable under section 16 of the Fair Labor Standards Act of 1938 for a violation of ... such Act occurring before April 15, 1986, with respect to any employee ... who would not have been covered by such Act under the Secretary of Labor’s special enforcement policy on January 1, 1985.

At the same time, however, section 2(c) of P.L. 99-150 does not become effective until April 15, 1986. Id. at § 6. The parties are aware of this development. Indeed, the enactment of these amendments is what prompted plaintiffs to request expedited proceedings on the theory that if this action can be reduced to judgment prior to April 15, 1986, then applicability of section 2(c) will be a moot question.

It is well-settled that the best evidence of legislative intent is the express language chosen by Congress in framing its enactments. See, e.g., Moorhead v. United States, 774 F.2d 936, 940-41 (9th Cir.1985); Powell v. Tucson Air Museum Foundation of Pima County, 771 F.2d 1309, 1311 (9th Cir.1985). On the other hand, where literal application of a statute would obtain an untoward result, and available legislative history clearly indicates that congressional intent would not be served by such literal reading, the courts have been quick to give effect to the intent, as opposed to the bare language. See, e.g., Moorhead, supra, 774 F.2d at 940-41; In re Cecchini, 772 F.2d 1493, 1495 (9th Cir.1985). In so doing, a court should be mindful of the particular facts and circumstances surrounding a given enactment. Lewis v. Hegstrom, 767 F.2d 1371, 1376 (9th Cir.1985).

With the foregoing ground rules in place, can it be said that Congress intended to create a “window” during which litigation such as the instant action could be maintained, but that the window would be slammed shut as of April 15, 1986? Legislative history is hardly supportive of any such position. The committee reports accompanying P.L. 99-150 are thoughtfully considered and expansively analyzed, perhaps extraordinarily so. The Senate Report, for example, noted the need for the amendments as follows:

In seeking to guarantee a minimum standard of living for all working Americans, the FLSA has been heralded as one of our most fundamental efforts to direct economic forces into socially desirable channels. By 1974, FLSA coverage extended to three-fourths of the nation’s employed nonsupervisor labor force; federal, state and local government employees were the only major exceptions. Federal workers now have been protected for more than a decade, but most state and local government employees only became covered as of the Supreme Court’s Garcia decision in February 1985. The Committee is not retreating from the principles established by Congress in the 1966 and 1974 FLSA amendments. The rights and protections accorded to employees of the federal government and the private sector also are extended to employees of states and their political subdivisions.
At the same time, it is essential that the particular needs and circumstances of the States and their political subdivisions be carefully weighed and fairly accommodated. As the Supreme Court stated in Garcia, “the States occupy a special position in our constitutional system.” Under that system, Congress has the responsibility to ensure that federal legislation does not undermine the States’ “special position” or “unduly burden the States.” In reporting this bill, the Committee seeks to discharge that responsibility and to further the principles of cooperative federalism.
In particular, in the wake of Garcia, the States and their political subdivisions have identified several respects in which they would be injured by immediate application of the FLSA. This legislation responds to these concerns by adjusting certain FLSA principles with respect to employees of states and their political subdivisions and by deferring the effective date of certain provisions of the FLSA insofar as they apply to the States and their political subdivisions.
The Committee recognizes that the financial costs of coming into compliance with the FLSA — particularly the overtime provisions of section 7 — are a matter of grave concern to many states and localities. We have received extensive testimony on this subject from representatives of state and local governments and organized labor. Although the testimony reflects sharp disagreements as to the nature and context of FLSA compliance costs, the Committee concludes that states and localities required to comply with the FLSA will be forced to assume additional financial responsibilities which in at least some instances could be substantial.
Jurisdictions which had relied for a decade upon the exemptions accorded under National League of Cities would be required to meet FLSA standards immediately under Garcia. Although many jurisdictions commendably and successfully have undertaken to do so, others have expressed an urgent need for lead-time in which to reorder their budgetary priorities while maintaining fiscal stability. As the Committee did under its 1974 amendments, it has again allowed for lead-time for state and local governments to comply with the FLSA requirements.

S.Rep. No. 99-159 at 7-8, reprinted in, U.S.Code Cong. & Ad.News 651, 655-56 (1985) (emphasis added).

Delving further into the Report reveals the following:

State and local government employers who are engaged in traditional functions as described by DOL at 29 CFR 775.2 and 775.4 (schools, hospitals, fire prevention, police protection, sanitation, public health, parks and recreation, libraries, museums) are therefore exempt from FLSA overtime liability until April 15, 1986. The Committee has deferred application of the FLSA overtime provisions until exactly one year after the mandate in Garcia so that state and local governments may make necessary adjustments in their work practices, staffing patterns, and fiscal priorities.

Id. at 15, reprinted in, U.S.Code Cong. & Ad.News 663 (1985).

Going beyond the general statements of policy contained in the Senate Report is the more explicit House Conference Report. After first noting with approval that some employers affected by Garcia commenced paying overtime rates after February 19, 1985, the Report states categorically that:

State and local government employers are in no way obligated to comply with the Act’s overtime provisions prior to April 15, 1986.

House Conf.Rep. No. 99-357 at 8, reprinted in, U.S.Code Cong. & Ad.News 670 (1985) (emphasis added).

Further:

Under the Senate bill and the House amendment public agencies are shielded from liability for violations of section 7 of the FLSA which occur prior to the effective date, April 15, 1986.

Id. at 9, reprinted in, U.S.Code Cong. & Ad.News 671 (1985).

Adding impetus to the apparent fact that Congress intended the subject amendments to negate any immediate impact by Garcia is the pointed manner in which certain employees engaged in nontraditional governmental functions were singled out:

The amendments made by this Act shall not affect whether a public agency which is a State, political subdivision of a State, or an interstate governmental agency is liable under section 16 of the Fair Labor Standards Act of 1938 for a violation of section 6, 7, or 11 of such Act occurring before April 15, 1986, with respect to any employee of such public agency who would have been covered by such Act under the Secretary of Labor’s special enforcement policy on January 1, 1985, and published in section 775.3 of title 29 of the Code of Federal Regulations.

P.L. 99-150 § 7, reprinted in, U.S.Code Cong. & Ad.News 99 Stat. 791 (1985).

In plain English, what that section means is explained as follows:

[Tjhese amendments do not affect whether employees of state and local governments who are engaged in nontraditional functions as defined by the DOL at 29 CFR 775.3 — notably local mass transit systems — are covered by the FLSA prior to April 15, 1986. The Committee is aware that the question whether transit employees, prior to the decision in Garcia, were entitled to FLSA compensation for overtime hours worked is still being litigated in federal court. The amendments are intended to protect the rights of both sides to resolve their differences through litigation, without taking a position on the matter.

S.Rep. No. 99-159 at 15, reprinted in, U.S.Code Cong. & Ad.News 663 (1985).

Congressional intent to declare a moratorium and thereby forestall the economic impact of Garcia is manifest. It is readily apparent that no “window” exists between passage of the amendments and their effective date. Somewhat more complicated, perhaps, is the equally apparent observation that Congress also intended to cut off liability incurred as a result of Garcia nunc pro tunc to the date the decision was announced. One might reasonably ask whether the power of Congress, plenary as it is in exercising authority under the Commerce Clause, is adequate to step into previously-filed litigation and terminate a party’s substantive rights. Given the unique aspects giving rise to this case, the Court concludes that Congress does have such power.

The. general rule in the Ninth Circuit governing legislative retroactivity is set forth in Matter of Reynolds, 726 F.2d 1420 (9th Cir.1984):

The retroactive application of a federal statute (other than an ex post facto law or a bill of attainder) is not forbidden under the Constitution so long as due process requirements are met____ Indeed, as a general rule, a judge should apply the law in effect on the date of decision.

Id. at 1422 (citations omitted).

Reynolds considered retroactivity to be the general rule regardless of whether the change in law was judicial, statutory, or constitutional:

unless an exception to the limited retroaction rule is applicable. Legislation is not applied to pending cases where Congress has expressly directed that the law is prospective only or where manifest injustice would result from a retrospective application.

Id.; see also, United States v. Ford, 737 F.2d 1506, 1508 (9th Cir.1984).

Notwithstanding the certitude with which Reynolds approached the question, or the antiquity of authorities relied upon, there is a countervailing view that federal legislation is presumptively prospective only, at least in situations in which a party may lose substantive rights. Cf. Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir.1985). Splitting the difference between these two extremes is Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496, 1504 (9th Cir.1984) (“A statute will not be given retroactive effect absent clear legislative intent”). In the face of an apparent intra-circuit conflict, reliance will be placed on Reynolds and Menhorn for several reasons. First, Friel’s discussion may be characterized as dicta since the statutory modification under examination in that decision was procedural and not substantive. Second, as a practical matter, there is room for doubt as to the substance of the rights asserted by plaintiff in the instant case.

The rights asserted are based on the 1974 FLSA amendments which, for purposes of the instant action, became effective on January 1, 1975. P.L. 93-259; 88 Stat. 55, § 6(c)(1)(A). Such rights were terminated in mid-1976 by National League of Cities. Those rights were revived nine years later by operation of Garcia. In the final analysis, however, the Garcia Court created no rights on its own authority. Minimum wages and overtime are not, when all is said and done, the result of principles known to the common law. Rather, Garcia merely gave force to rights created by Congress. If in its wisdom Congress chooses to impose a moratorium on the availability of substantive rights created in the first instance only by legislative action, it is likely well within its plenary powers under the Commerce Clause to do so, at least in the absence of a due process violation. Given the fact that neither governmental employers nor their employees knew they had any rights or duties under the 1974 FLSA amendments pr e-Garcia, and in point of fact had none, it is difficult to see how anyone could have relied upon the efficacy of those amendments.

IV. Conclusion

The alternative rationales employed in resolving the instant motions cannot be read in isolation. The observation that Congress made a reasoned, policy-based decision to spare the States and their subdivisions the budgetary shock of immediate compliance with Garcia also serves to buttress the earlier conclusion that Garcia should not be applied retroactively. It would, after all, be the height of incongruity to deem Garcia as applying only retroactively and not prospectively. The net result is that the Court deems Garcia non-retroactive and the 1985 FLSA amendments to be retroactive.

Is there an inconsistency of approach here in that the Court has construed principles governing judicial retroactivity perhaps too constrictively and legislative retroactivity perhaps too expansively? On the contrary, the focal point of inquiry has remained the same; viz., is it fair to change the rules of the game once the bets are down. The answer is in the negative if the wager is substantial, the rules initially well-settled, and the change in rules outcome-determinative. The answer is in the affirmative if no one knew there was even a bet on the table.

THEREFORE IT IS ORDERED that:

(1) Plaintiffs’ Motion for Summary Judgment is DENIED.

(2) Defendant’s Motion for Summary Judgment is GRANTED.

(3) This action is DISMISSED.

(4) The Clerk shall enter judgment accordingly.

      . Hodel v. Virginia Surface Mining & Reel. Ass'n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) has been cited for the proposition that the fire district’s ability to pay is irrelevant. It is true that Hodel suggests that economic consequences to a state, standing alone, will not bar congressional action properly predicated upon its Commerce Clause powers. Id. at 292 n. 33, 101 S.Ct. at 2368 n. 33. But the now-defunct Tenth Amendment analysis engaged in by Hodel presents substantially different issues than does the retroactivity question at hand. The Supreme Court has had occasion to consider whether the potential for significant financial impact on local government constitutes good cause for nonretroactive application of its own decision, and has answered in the affirmative. Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969).

      . The Court’s reading of RCW ch. 52.16 does not comport entirely with the interpretation posited by defendant. It is not at all clear that the fire district lacks authority to issue general obligation bonds and thereafter impose an excess levy without first securing voter approval. In order to save counsel from arguing non-issues on appeal, it should be emphasized that the Court has in no sense reached the merits of either party’s contention regarding the fire district's resources.

      . The Court has no occasion to consider the national economic impact of Garcia. That is a matter left to Congress. See Section III infra. Insofar as the parties to the instant action are concerned, it bears noting that the award sought is $108,000 in back pay, $108,000 in liquidated damages, and statutory costs and attorney fees. If a rural fire district with only a handful of employees and largely dependent for its manpower on volunteers can incur that kind of liability, one cannot help but wonder what the final cost of applying Garcia retroactively would be across the Nation.

      . January 1, 1975 is the date of basic coverage for fire fighters under the FLSA. See 29 U.S.C. § 207(k). In addition, Congress contemplated a phase-in plan whereby coverage would improve on a yearly basis with regard to maximum hours of work before overtime would be triggered. Counsel appear to have conceded during oral argument that their dispute over the formulae embodied in § 207(k) presents a damages question rather than a liability issue.


source: Caselaw Access Project

author: PEREZ-GIMENEZ, Chief Judge.

license: Public Domain

text:
    Miguel GENOVA, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 82-0743(PG).
    United States District Court, D. Puerto Rico.
    Jan. 22, 1986.

      Fabio A. Román García, Arecibo, P.R., for plaintiff.
    Wanda Rubianes, Asst. U.S. Atty., Hato Rey, P.R., for defendant.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

This is an action brought under Section 205(g) of the Social Security Act, as amended, (the Act) for review of the decision of the Secretary of Health and Human Services (the Secretary) which denied plaintiffs application for retirement insurance benefits.

Plaintiff filed an application for old age insurance benefits on August 5, 1980. The application was denied initially (Tr. 73-75) and on reconsideration (Tr. 90-93). The administrative law judge (AU) found after a de novo review of the record that plaintiff was born on March 26, 1919, and therefore, had not met the age requirement of the Act at the time he filed his application (Tr. 94-99). This determination was affirmed by the Appeals Council on January 18, 1982 (Tr. 106). Plaintiff was subsequently awarded retirement insurance benefits effective March 1981 based on the date of birth determined by the AU (Tr. 34, 107-108). On August 26, 1982, this Court remanded the case to the Secretary for further proceedings (Tr. 6). In a recommended decision issued on July 22,1983, the AU found that plaintiff was born on March 26, 1919, and concluded that plaintiff did not meet the age requirement of the Act on the date he filed his application (Tr. 6-11). Plaintiff claimed he was born on September 5, 1914. The Appeals Council adopted the findings and conclusions of the AU’s recommended decision when it issued a decision on October 31, 1983 (Tr. 3-4).

The sole question for this Court is whether the Secretary’s determinations are supported by substantial evidence on the record as a whole. 42 U.S.C. 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Falú v. Secretary of Health and Human Services, 703 F.2d 24, 28 (1st Cir.1983). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Universal Camera v. N.L.R.B., 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951).

In order to qualify for retirement insurance benefits, an individual must have attained at least age 62. 42 U.S.C. 402(a). An applicant for such benefits is required to furnish evidence of age which shows his date of birth. 20 C.F.R. § 404.715. The best evidence to prove age is either “a birth certificate or hospital birth record recorded before age 5; or a religious record which shows your date of birth and was recorded before age 5.” 20 C.F.R. § 404.716. Other evidence, however, is also considered.

The documentary evidence in this case is the following:

Document Date Issued (I) or Recorded (R) Age or Date of Birth Shown
Application for SS benefits August 5, 1980 (R) September 5, 1914
Court Order February 1, 1980 (R) September 5, 1914
Delayed Birth Certificate July 28, 1980 (I) September 5, 1914
Sister’s affidavit October 10, 1979 (R) September 5, 1914
Application for SS Account number April xx, 1949 (R) December 19, 1919
Baptismal Certificate (claimant) March 27, 1920 (R) March 26, 1919
Document Date Issued (I) or Recorded (R) Age or Date of Birth Shown
Birth Certificate (claimant) January 10, 1920 (R) December 10, 1919
U.S. Census Report January 1, 1920 (R) Age 3
Birth Certificate (sister-Marina) December 10, 1919
Baptismal Certificate (sister-Marina) January 25, 1920 (R) December 10, 1919

According to the AU, plaintiffs baptismal certificate, issued on January 10, 1920, and showing March 26, 1919, as plaintiffs date of birth, had the highest probative value. Therefore, the AU concluded that when plaintiff applied for old age insurance benefits on August 5, 1980, he had not met the age requirement of the Act.

After a thorough consideration of all the evidence in this case, as well as the Secretary’s findings and the issues presented by this appeal, this Court concludes that the Secretary’s determination is supported by substantial evidence on the record as a whole.

According to the AU, the baptismal certificate had the highest probative value because such certificates are documents that record official ceremonies done by religious ministers. According to plaintiff, however, the baptismal certificate was inaccurate. Plaintiff argues that it was very likely that the church authorities lied in order to protect his parents from criminal charges for they had failed to report his birth to the Demographic Registry within one-year of its occurrence. See, 24 L.P.R.A. § 1181. Plaintiff also argues that the AU’s finding that plaintiff was born on March 26, 1919, just a mere 257 days before his sister Marina was born, was unlikely because of the Puerto Rican belief that a woman who had just given birth to a child must undergo a quarantine before being allowed to have sexual contact again. Both of these arguments are extremely conjectural and cannot be used to overturn the AU.

According to the AU, the baptismal certificate also had the highest probative value in light of other evidence. For example, the AU found that the census record was inaccurate since it showed a three-year discrepancy between claimant’s alleged birth date, September 5, 1914, and the date shown in the census report, that of January 1, 1920. The child was no less than three years of age (Tr. 87). Such a difference would have been obvious in a young child. Moreover, the baptismal certificate, which was recorded before plaintiff reached age 5, is preferred evidence while the census is not. Also, there is no other evidence that shows that plaintiff was born in 1917. Therefore, there was substantial evidence on the record as a whole to find the census report inaccurate.

The AU also found the corrected birth certificate that arose from a local court resolution to be inaccurate. Said resolution ordered the Demographic Registry to change plaintiff’s birth certificate to September 5, 1914. However, the local court’s resolution was based on a self-serving affidavit of plaintiff’s 83-year-old sister. Therefore, there was substantial evidence on the record as a whole to support the AU’s conclusion.

WHEREFORE, in light of the applicable law and jurisprudence, the Secretary’s decision is hereby AFFIRMED.

IT IS SO ORDERED.


author: GENE CARTER, District Judge.

text:
    Joseph M. CAPONE, et al., Plaintiffs, v. GLOBE AIR, INC., Union Carbide Agricultural Products, Inc., a subsidiary of Union Carbide Corporation, Scott Paper Co., and Biegert Aviation, Inc., Defendants.
    Civ. No. 83-0408 P.
    United States District Court, D. Maine.
    Jan. 22, 1986.
    Anthony M. Traini, Leppo & Traini, Boston, Mass., Barry A. Margolin, Harold L. Lichten, Thomas Tureen, Tureen & Margolin, Portland, Me., for plaintiff.
    Joseph L. Cotter, Marie P. Buckley, Goodwin, Procter & Hoar, Boston, Mass., David M. Cohen, Petruccelli, Cohen, Erler & Cox, Portland, Me., for defendants Union Carbide Corp. and Union Carbide Agr.
    Phillip D. Buckley, Rudman & Winchell, Bangor, Me., for defendants Globe Air and Biegert Aviation.
    Debra Buccina, Thomas J. Quinn, Hewes, Beals & Douglas, Portland, Me., for Scott Paper.
   MEMORANDUM OF DECISION AND ORDER ON MOTION FOR DISMISSAL

GENE CARTER, District Judge.

This case comes before the Court on the motion of Defendant Globe Air/Biegert Aviation (“Globe”) for dismissal. Plaintiff Joseph M. Capone alleges that while on a hunting expedition in western Maine, he was sprayed by insecticide during the state’s 1980 spruce budworm spraying operation. Plaintiff Joseph M. Capone brought an action in this Court against the alleged manufacturer of the insecticide (Union Carbide Agricultural Products, Inc.) and its parent corporation (Union Carbide Corporation), the owner of the land where the Plaintiff allegedly was sprayed (Scott Paper Co.), and the joint venture which performed the spraying (Globe). Joseph Capone’s wife, Anita M. Capone, also sues the above-named Defendants for loss or consortium.

Globe brings this motion to dismiss under the doctrine of res judicata, claiming that the prior voluntary dismissal with prejudice of Plaintiff’s action in state court against the State of Maine bars the present action in this Court against Globe. In the prior state court action in Kennebec County Superior Court, Docket No. CV-82-271 (the “Kennebec suit”), Plaintiff had alleged that the State of Maine was responsible for the injuries he suffered from the spraying operation. Plaintiff in that case made claims under the Maine Tort Claims Act, 14 M.R.S.A. §§ 8101, et seq.

At the time of the spraying, Globe was under contract with the State of Maine to perform the actual spraying procedure. Under one provision of the contract, Globe was required to

indemnify and hold harmless ... the State of Maine, their officers, agents and employees, against and from all costs, expenses, liabilities, injuries, losses, damages, judgments, orders, decrees, injunctions, suits, actions, fines, penalties, claims, causes of action and demands of every kind and nature, including reasonable counsel fees ... asserted by or on behalf of any person, entity or authority arising out of ... (b) any accident, injury or damage that occurs in connection with the work to be performed under the contract, however occurring____

Based upon its obligation to indemnify the State of Maine and its furnishing of counsel in the Kennebec suit, Globe contends that it is bound by any previous final action against the State of Maine in connection with the spraying operation. Therefore, since the Plaintiff’s prior action against the State was dismissed with prejudice, Globe contends that it must bar a subsequent action by Plaintiff against Globe in this Court, because Globe was a party or privy to the prior Kennebec suit.

In determining the preclusive effect of any state court judgment under the doctrine of res judicata, this Court must look to state law treatment of the effect of a prior judgment. Roy v. City of Augusta, Maine, 712 F.2d 1517 (1st Cir.1983). The Court in Roy states:

For the doctrine of res judicata to be applied in Maine, “the court must satisfy itself that 1) the same parties, or their privies are involved; 2) a valid final judgment was entered in the prior action; 3) the matters presented for decision were, or might have been, litigated in the prior action.” Kradoska v. Kipp, 397 A.2d 562 (Me.1979).

Id. at 1520.

Turning to the question whether the same parties or privies were involved in the Kennebec suit as in the present action before this Court, the Maine Supreme Judicial Court has noted that in “determining who are the ‘parties’ who will be bound by a prior judgment, we look beyond the nominal parties of record to the real parties in interest.” Arsenault v. Carrier, 390 A.2d 1048, 1050 (Me.1978). The Court in Arsenault v. Carrier, 390 A.2d at 1050, went on to quote approvingly from the decision in Savage v. North Anson Manufacturing Co., 124 Me. 1, 4, 124 A. 721, 722 (1924), which states:

Under the term “parties,” the law includes all persons who, though not nominally parties, but being directly interested in the subject-matter, have a right to make a defense, or to control the proceedings, and to appeal from the judgment of the court, which right also includes the right to adduce testimony and cross-examine witnesses offered by the other side. Persons not having these rights are regarded as strangers to the cause, and, of course, are not bound.

Whether or not Globe actually controlled the earlier Kennebec suit is a question of fact, Del Mar Avionics v. Quinton Instruments Co., 645 F.2d 832, 835 (9th Cir.1981). Globe has put forth evidence of a number of factors bearing upon control, id. at 835, such as selection of and payment of counsel and the presence of a written indemnification agreement. However, it failed to offer any evidence, as required by Arsenault, bearing on the issue whether it would have controlled any decision to appeal an adverse judgment in the Kennebec suit. See also IB Moore’s Federal Practice, ¶ 0.411[6].

Moreover, the Kennebec suit involved an action against the State of Maine, the Department of Environmental Protection, the Department of Agriculture, the Pesticides Control Board, the Department of Conservation, and the University of Maine, all through the provisions of the Maine Tort Claims Act. While Globe furnished defense counsel in accordance with its contractual indemnification obligations, it served in a representative rather than individual capacity in defending the State of Maine against claims lodged solely against the State and its agencies.

The Kennebec suit involved allegations that the State and its agencies failed to properly warn of the spraying in the area and to adequately patrol the area for persons who would come in contact with the insecticide. The complaint also alleged that the State breached duties of care as to proper dosages, and that the State improperly supervised the discharge of the spray. In furnishing defense counsel for the Kennebec suit, Globe did not act in its individual capacity as potential defendant for its own possible liability for the injury to Plaintiff. Therefore, Globe is not permitted to bar a subsequent action by Plaintiff against it in its individual capacity.

The Restatement addresses this question, stating:

(2) A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.

Restatement, Second, Judgments § 36.

The issue also is addressed in Moore’s Federal Practice, which states:

... a judgment against a party suing or sued solely in a representative capacity cannot be introduced against him as either a bar or estoppel when he appears in a subsequent action by or against him in his individual capacity ... [this] protects the representative from conflict of interest and prejudice to his individual interest when he sues or is sued purely as a representative of others.

IB Moore’s Federal Practice, ¶ 0.411[3. -1], See also Roy v. City of Augusta, 112 F.2d at 1522, (“under well established rules of res judicata, recognized in Maine, an action brought against an individual in one capacity does not bar a later action brought against the same individual in a different capacity.” [Citations omitted].)

Because Globe has failed to satisfy the first test for invoking res judicata, namely that of showing it was a party to or was privy to the prior Kennebec suit, it is unnecessary for this Court to address the two remaining elements of the res judicata test in Maine.

For the foregoing reasons, the motion of Defendant Globe Air/Biegert Aviation for dismissal is hereby DENIED.

So ORDERED.


author: McCURN, District Judge.

text:
    Tom U.U. OKURE, Plaintiff, v. Javan OWENS and Daniel G. Lessard, Defendants.
    No. 85-CV-1483.
    United States District Court, N.D. New York.
    Jan. 23, 1986.

      Sullivan, Rehfuss, Cunningham & Brennan, Albany, N.Y., for plaintiff; Joseph M. Brennan, of counsel.
    Robert Abrams, Atty. Gen., Albany, N.Y., for defendants; Eileen E. Bryant, Asst. Atty. Gen., of counsel.
   MEMORANDUM-DECISION AND ORDER

McCURN, District Judge.

Plaintiff brings the present action under 42 U.S.C. § 1983 seeking damages for the alleged violation of plaintiff’s constitutional rights. Defendants move to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below the court denies defendants’ motion.

BACKGROUND

On January 27, 1984, defendants arrested plaintiff for disorderly conduct on the premises of the State University of New York in Albany, New York. Defendants are members of the State University Police. Plaintiff filed the present complaint on November 13, 1985. The complaint alleges that defendants violated plaintiff's constitutional rights by arresting him without cause and beating him. Plaintiff seeks $50,000 in damages.

Defendants have moved to dismiss the complaint on the ground that it is time-barred. They contend that the statute of limitations in the present action is one year under the New York Civil Practice Law and Rules § 215(3).

DISCUSSION

Where Congress fails to provide a limitations period for a federal cause of action, the courts will generally apply the state statute of limitations for the most analogous state action, as long as the state law does not conflict with federal law or policy. Wilson v. Garcia,—U.S.-, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985); Burnett v. Grattan, 468 U.S. 142, 104 S.Ct. 2924, 2929, 82 L.Ed.2d 36 (1984); Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440 (1980). No specific statute of limitations exists for 42 U.S.C. § 1983 claims. Accordingly, the courts have interpreted 42 U.S.C. § 1988 to require application of the most analogous state statute of limitations. See eg. Wilson, 105 S.Ct. at 1942-43; Burnett, 104 S.Ct. at 2929.

Prior to Wilson the rule was settled that New York’s three-year statute of limitations for actions to recover upon a liability created by statute, N.Y.Civ.Pract.Law § 214(2) (McKinney 1972 & Supp. 1984-85), applied to § 1983 actions brought in New York. Pauk v. Board of Trustees of City University of New York, 654 F.2d 856 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). However, the rule established in Pauk is no longer valid. In Wilson the Supreme Court affirmed the Tenth Circuit Court of Appeal’s determination that New Mexico’s statute of limitations for actions under the State’s Tort Claim Act should not apply to § 1983 claims. The Supreme Court held that all § 1983 claims should be characterized for limitations purposes as personal injury actions. Wilson, 105 S.Ct. at 1949.

Under New York law the general statute of limitations for actions to recover for personal injury is three years. N.Y.Civ.Pract.Law § 214(5). However, New York has a separate, one-year statute for actions to “recover damages for assault, battery, false imprisonment, malicious prosecution, libel, slander, false words causing special damages, or a violation of the right of privacy under section fifty-one of the (New York) civil rights law”. N.Y.Civ.Pract.Law § 215(3). Defendants contend that § 215(3), governing the above intentional torts, is the most appropriate New York statute of limitations for § 1983 claims. In support of their position defendants emphasize that the civil rights statutes grew out of the Klu Klux Elan’s violent activities.

The court believes that defendants have misconstrued the Supreme Court’s intent in Wilson. In selecting a general characterization for all § 1983 claims, the Supreme Court was concerned with “uniformity, certainty, and minimization of unnecessary litigation”. The Court intended to ensure that the one most appropriate statute of limitations in each state would be applied to all § 1983 claims and that the borrowed limitations period would “not discriminate against the federal civil rights remedy”. Wilson, 105 S.Ct. at 1947. In choosing a uniform characterization the Supreme Court recognized that “(a)lmost every § 1983 claim can be favorably analogized to more than one of the ancient common-law forms of action, each of which may be governed by a different statute of limitations.” Id. at 1945. The Court also noted, “When § 1983 was enacted, it is unlikely that Congress actually foresaw the wide diversity of claims that the new remedy would ultimately embrace.” Id. at 1946. For example, the plaintiff's § 1983 claim in Wilson, as in the present action, could be characterized as a state tort claim for false arrest, assault and battery, or personal injury. It could also be viewed generally as a claim arising from a statute or from the state’s specific statute governing state agents’ torts. The Supreme Court further emphasized the broad scope of § 1983 claims by stating:

A catalog of other constitutional claims that have been alleged under § 1983 would encompass numerous and diverse topics and subtopics: discrimination in public employment on the basis of race or the exercise of First Amendment rights, discharge or demotion without procedural due process, mistreatment of schoolchildren, deliberate indifference to the medical needs of prison inmates, the seizure of chattels without advance notice or sufficient opportunity to be heard — to identify only a few. If the choice of the statute of limitations were to depend upon the particular facts or the precise legal theory of each claim, counsel could almost always argue, with considerable force, that two or more periods of limitations should apply to each § 1983 claim.

Id. See also Id. at 1946 n. 31 (quoting Justice Biackmun’s discussion of other causes of action that have been alleged under § 1983).

Section 215(3) of the New York Civil Practice Law and Rules is a narrowly drawn statute which is applicable only to certain intentional torts. Although the present action may arise, at least in part, from an assault and battery, application of § 215(3) would characterize all § 1983 claims as intentional tort claims for assault, battery, false imprisonment, malicious prosecution, libel, or slander. In Wilson the Supreme Court rejected such a narrow approach. The Court stated, “In this light, practical considerations help to explain why a simple, broad characterization of all § 1983 claims best fits the statute’s remedial purpose.” Id. at 1945. Having noted that “the § 1983 remedy encompasses a broad range of potential tort analogies, from injuries to property to infringments of individual liberty” and that the Forty-Second Congress would probably have characterized § 1983 “as conferring a general remedy for injuries to personal rights”, Id. at 1948, the Court stated:

The characterization of all § 1983 actions involving claims for personal injuries minimizes the risk that the choice of a state statute of limitations would not fairly serve the federal interests vindicated by § 1983. General personal injury actions, sounding in tort, constitute a major part of the total volume of civil litigation in the state courts today, and probably did so in 1871 when § 1983 was enacted. It is most unlikely that the period of limitations applicable to such claims ever was, or ever would be, fixed in a way that would discriminate against federal claims, or be inconsistent with federal law in any respect, (emphasis added)

Id. at 1949. Accordingly, the Supreme Court chose to characterize § 1983 claims broadly in terms of general personal injury actions and not in terms of a specific type of intentional tort, as defendants advocate. Section 214(5) of the New York Civil Practice Law and Rules is New York’s statute of limitations for general personal injury actions and is the most appropriate limitations period to apply to § 1983 claims.

Moreover, the court may not borrow a state limitations period for a federal cause of action which conflicts with federal policy. The central objective of the civil rights statutes is to ensure that individuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief. Burnett, 104 S.Ct. at 2932. The Supreme Court has stated:

§ 1983 provides “a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation.” Mitchum v. Foster, 407 U.S. 225, 239, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972). The high purposes of this unique remedy make it appropriate to accord the statute “a sweep as broad as its language.”

Wilson, 105 S.Ct. at 1945. To characterize all § 1983 claims as personal injury actions arising from assault, battery, false imprisonment, malicious prosecution, libel, or slander and to apply the one-year statute of limitations of New York Civil Practice Law and Rules § 215(3) would improperly restrict the scope of § 1983 and controvert federal policy.

This court’s decision also follows the practice of the other courts in this circuit. Since the Supreme Court decided Wilson, the federal courts in the Second Circuit have been applying to civil rights claims New York’s three-year statute of limitations for general personal injury actions. See e.g. Testa v. Gallagher, 621 F.Supp. 476 (S.D.N.Y.1985); Grinan v. Willow-brook Developmental Center, No. 84-CV-2769, slip op. (S.D.N.Y. Oct. 17, 1985); Lad-son v. New York City Police Department, 614 F.Supp. 878, 879 (S.D.N.Y.1985); Rodrigues v. Village of Larchmont, 608 F.Supp. 467, 476-77 (S.D.N.Y.1985); Snell v. Suffolk County, 611 F.Supp. 521, 524 (E.D.N.Y.1985); Williams v. Allen, 616 F.Supp. 653, 655 (E.D.N.Y.1985). Defendants are unable to cite one case in this circuit which has used a different limitations period.

Accordingly, the court holds that the correct limitations period to apply in civil rights actions is New York’s three-year statute of limitations for general personal injury actions, N.Y.Civ.Pract.Law § 214(5). The present action accrued on January 27, 1984. Plaintiff filed his complaint on November 13, 1985, well within the three-year limitations period. Because the present complaint is timely, defendants’ motion to dismiss is denied.

IT IS SO ORDERED.


author: EDWARD WEINFELD, District Judge.

text:
    IMPTEX INTERNATIONAL CORP., Plaintiff, v. LORPRINT INC., Defendant.
    No. 85 Civ. 8404 (EW).
    United States District Court, S.D. New York.
    Jan. 23, 1986.
    Blutrich, Falcone & Miller, New York City, for plaintiff; Michael D. Blutrich, of counsel.
    Levine & Grossman, Mineóla, N.Y., for defendant; William F. Levine, of counsel.
   OPINION

EDWARD WEINFELD, District Judge.

The plaintiff petitions for an order directing arbitration under 9 U.S.C. § 4. Defendant opposes arbitration on the ground that no signed arbitration agreement exists between the parties.

Plaintiff Imptex, an importer of fabrics, entered through a broker into sales contracts with defendant Lorprint, Inc., a California garment manufacturer. Each transaction was evidenced by a sales confirmation sent to both parties by the broker. Both the broker’s confirmation and the seller’s printed form contract contained arbitration clauses calling for the settlement of all disputes in New York. The buyer neither signed nor returned the broker’s confirmations and the seller’s contracts. Deliveries were made pursuant to the sales contracts; the defendant never objected to the inclusion of the arbitration clause in the order confirmations or sales contracts sent to it.

In opposition to the motion to compel arbitration, Lorprint argues that the arbitration clause was a significant additional term in the sales agreements, and that Lorprint was not bound by the clause in the absence of its own explicit written consent. Lorprint’s signature on the contract containing the arbitration clause was not required as a matter of law. As this Court has said, “While an arbitration agreement must be in writing to be enforceable, there is no requirement that it be signed. It is sufficient that the parties by act or conduct are committed to if.” The New York courts have repeatedly held that, as arbitration clauses are commonly used in the textile trade, a textile buyer’s failure to object to an arbitration clause upon receipt of both the sales agreement signed by the seller and the initial shipment of goods binds the buyer to the arbitration clause. Accordingly, plaintiff’s motion is granted; the parties are directed to arbitrate their dispute under the rules of the General Arbitration Council of the Textile Industry. So ordered.

      . Starkman v. Seroussi, 377 F.Supp. 518 (S.D.N.Y.1974); see A/S Custodia v. Lessin Int'l, 503 F.2d 318, 320 (2d Cir.1974); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960); ABC v. AFTRA, 412 F.Supp. 1077, 1084 (S.D.N.Y.1976).

      . See Helen Whiting, Inc. v. Trojan Textile Corp., 307 N.Y. 360, 368, 121 N.E.2d 367 (1954); Le-high Valley Indus, v. Armtex, Inc., 53 A.D.2d 582, 384 N.Y.S.2d 837 (1st Dept.1976); Gaynor-Stafford Indus, v. Mafco Textured Fibers, 52 A.D.2d 481, 384 N.Y.S.2d 788 (1st Dept.1976).


author: NORTHROP, Senior District Judge.

text:
    Mildred G. FRYE v. H. Clifton GRANDY, et al.
    Civ. A. No. N-85-3853.
    United States District Court, D. Maryland.
    Jan. 24, 1986.
    Alan H. Legum and Susanne K. Henley, Annapolis, Md., for plaintiff.
    Michael O. Connaughton, Tonia Y. Belton, and the Co. Atty.’s Office for Upper Marlboro, Md., for defendants.
   MEMORANDUM

NORTHROP, Senior District Judge.

Plaintiff Mildred G. Frye instituted this action against Prince George’s County of Maryland, Prince George’s County Consumer Protection Commission (“Commission”) and H. Clifton Grandy, Executive Director of the Commission, asserting that she has been discriminated against in the workplace on the basis of her race and her age. The suit has been brought pursuant to 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”).

Ms. Frye, a forty-nine year old white woman, has been employed with the County Consumer Protection Commission as an Administrative Aide II for approximately seven years. In her complaint, she alleges that she was passed over for a promotion in June, 1984 in favor of a less-qualified younger black woman. Since that time, many of Ms. Frye’s job duties have been reassigned to other younger black women, women groomed to replace the plaintiff in the future.

Presently before the Court are Rule 12 motions for dismissal brought by all three defendants. The motions do not challenge the plaintiff’s Title VII or ADEA claims, but instead seek dismissal of the claims under 42 U.S.C. § 1983. The defendants’ argument is two-fold: 1) The plaintiffs section 1983 claims are preempted by Title VII and the ADEA, and 2) the complaint fails to state a section 1983 cause of action against the County because the alleged discrimination was not the product of an official County policy or custom.

A. Preemption and Section 1983

Section 1983 does not in itself create any substantive rights. Rather, it provides a statutory basis to receive a remedy for the deprivation of a right secured by the Constitution and laws of the United States by a person acting under color of state law. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). When the remedial devices provided in a particular statute are sufficiently comprehensive, they may suffice to demonstrate a Congressional intent to preclude the remedy of suits under section 1983. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19-20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981) (the elaborate enforcement provisions of the Federal Water Pollution Control Act and the Marine Protection, Research, and Sanctuaries Act of 1972 supplant any remedy otherwise available under section 1983).

Plaintiff Frye asserts in her complaint that the defendants discriminated against her on the basis of her race and age in violation of Title VII and the ADEA respectively, as well as the equal protection clause of the Fourteenth Amendment. All three claims are predicated on the same alleged facts, the denial of a promotion to Ms. Frye and the subsequent reassignment of her duties to other workers. The question presented in this case is whether the enactments of Title VII and the ADEA, each with its own elaborate remedial scheme, evidence a Congressional intent to preclude the remedy of a section 1983 claim of race and age discrimination in violation of the Fourteenth Amendment.

1. Title VII

This Court recently considered and decided the question of whether Title VII preempts section 1983 in race discrimination claims. Keller v. Prince George’s County Department of Social Services, 616 F.Supp. 540 (D.Md.1985). The plaintiff in Keller pled two causes of action in her complaint, one under Title VII, the other under section 1983 alleging a violation of the equal protection clause of the Fourteenth Amendment. Both causes of action sought redress for a single incident, the denial of a promotion to Ms. Keller by the County agency.

Applying the rationale of Great American Fed. S. & L. Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), this Court dismissed Ms. Keller’s section 1983 claim under a theory of preemption. In enacting Title VII, Congress created a comprehensive remedial structure to redress employment discrimination. “Allowing § 1983 actions for employment discrimination to proceed solely under the Fourteenth Amendment would effectively eclipse the detailed procedures and remedies Congress specifically enacted for employment discrimination under Title VII merely because the plaintiff can show state action.” Keller at 543. Accord Weide v. Mass Transit Administration, 628 F.Supp. 247 (D.Md. June 28, 1985) (J. Young). Cf. Great American S. & L. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3)). Congress could not have intended to permit a plaintiff to bypass and in effect defeat the Title VII statutory scheme by filing suit under § 1983.

Following Keller and Weide, we therefore dismiss that part of the plaintiffs § 1983 claim alleging race discrimination under the Fourteenth Amendment.

2. Age Discrimination in Employment Act

The plaintiff has framed her two claims of age discrimination analogously to her allegations of race discrimination. One claim is based on the specific statute, the ADEA, and the second is grounded on section 1983, alleging a violation of the equal protection clause of the Fourteenth Amendment. The preemption analysis of age discrimination, like that of race discrimination, requires a review of the enforcement and remedial provisions of the relevant statute.

Within the statutory framework of the ADEA, the right of an individual to bring a private cause of action is subordinate to the EEOC’s power to enforce compliance. An injured employee who wishes to invoke the Act must first lodge a charge with the EEOC within one hundred eighty days of the alleged unlawful practice, or within three hundred days if section 633(b) applies and the party files with the appropriate state agency. After filing a claim with the EEOC, the aggrieved individual may not initiate a civil action for sixty days. The right to bring a private action, moreover, terminates upon the commencement of an action by the EEOC on behalf of the aggrieved employee. 29 U.S.C. § 626(c). The EEOC has an unimpeded opportunity to file an action during the sixty day waiting period.

The role of the EEOC is central to effectuating the policies of the Act. Vance v. Whirlpool Corp., 707 F.2d 483, 488, aff'd on reh’g, 716 F.2d 1010 (4th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 873 (1984); Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1197-98 (5th Cir.1975). Informal conciliation pursued by the EEOC is the primary method of dispute resolution envisioned by the Act. During the sixty day waiting period following filing with the EEOC, the agency is under a statutorily imposed duty to investigate and attempt to resolve the matter through “informal methods of conciliation, conference, and persuasion.” § 626(b) & (d).

The legislative history of the Act manifests the Congressional intent to effectuate enforcement whenever possible without resorting to formal litigation. See, e.g., S.Rep. No. 723, 90th Cong., 1st Sess. 5 (1967); H.R.Rep. No. 805, 90th Cong., 1st Sess. 5 (1967) reprinted in 1967 U.S.Code Cong. & Ad.News 2213, 2218. The latter report states in part:

It is intended that the responsibility for enforcement vested in the Secretary [later assigned to the EEOC] by Section 7, be initially and exhaustively directed through informal methods of conciliation, conference, and persuasion and formal methods applied only in the ultimate sense.

Id. See also Vance v. Whirlpool, 707 F.2d at 488; Marshall v. Sun Oil Co. of Pennsylvania, 592 F.2d 563, 565 (10th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979); Dean v. American Security Insurance Co., 559 F.2d 1036, 1038 (5th Cir.1977), cert. denied, 434 U.S. 1066, 98 S.Ct. 1243, 55 L.Ed.2d 767 (1978); Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 841 (3d Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978).

If formal litigation becomes necessary, EEOC enforcement is given precedence over private actions. Thus, private parties must wait sixty days after filing with the EEOC before bringing suit, so that the agency may determine whether to institute litigation. Vance v. Whirlpool, 707 F.2d at 489. If the EEOC files suit, the individual is barred from doing so. The EEOC would then represent the aggrieved employee in the agency enforcement litigation, at the treasury’s expense. § 626(c).

The Act also defines the remedies available for the private plaintiff. Damages for pain and suffering are not recoverable, Slatin v. Stanford Research Institute, 590 F.2d 1292 (4th Cir.1979), and the same is true for punitive damages. Walker v. Pet-tit Construction Co., 605 F.2d 128, aff'd on reh’g, 611 F.2d 950 (4th Cir.1979).

The provisions of the Act evidence Congressional intent to preclude suits for age discrimination under section 1983. Such actions which would only circumvent the Congressional mandate of the ADEA. A section 1983 suit for age discrimination brought against employers acting under color of state law could, for example, be instituted without notifying the EEOC of the charges. Even if charges were filed with the agency, suit could be brought before the expiration of the sixty day waiting period. A private action under section 1983 could also be initiated after the EEOC commenced litigation under the ADEA. It is inconceivable that Congress would have intended to preserve the private cause of action under section 1983 for age discrimination when that cause of action would severely undermine, if not cripple, the primary enforcement mechanism created by Congress under the ADEA — informal EEOC conciliation. Congress did not intend to permit plaintiffs to bypass the statutory scheme clearly embodied in the language and legislative history of the ADEA merely because they are employed by a person acting under color of state law.

This Court holds, therefore, that passage of the ADEA preempted the private cause of action under § 1983 for age discrimination.

B. County Liability Under 42 U.S.C. Section 1983

As a second and independent basis for its motion to dismiss, Prince George’s County asserts that the complaint fails to state a cause of action under Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

The plaintiff premises her section 1983 claim against the County on a Monell theory of liability. Monell v. New York City Department of Social Services, 436 U.S. at 690, 98 S.Ct. at 2035; Ledford v. Delancey, 612 F.2d 883, 887 (4th Cir.1980) (county may be liable under Monell). In Monell, the Supreme Court held that a municipality could be liable under § 1983 for constitutional torts committed pursuant to an official policy or custom. 436 U.S. at 690-91, 98 S.Ct. at 2035-36. A municipality could not, however, be held vicariously liable under a theory of respondeat superior because it employs a constitutional tort-feasor. Such liability would violate the Congressional intent to preclude liability in cases in which the municipality itself was not at fault. Id. at 691-94, 98 S.Ct. at 2036-38.

In order to plead a cause of action under Monell, a plaintiff must allege a specific incident of misconduct and that the specific incident implemented an official government policy or custom. A complaint will withstand a motion to dismiss only if the facts alleged, together with reasonable inferences drawn from them, could lead a reasonable factfinder to conclude that the actions of the government employee were the product of some official policy or custom. The allegation of a single act of unconstitutional conduct will not in and of itself support an inference that the conduct was undertaken pursuant to an official custom or policy. City of Oklahoma City v. Tuttle,—U.S.-,-, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985); Powe v. City of Chicago, 664 F.2d 639 (7th Cir.1981) (standards applicable to a motion to dismiss).

An examination of Ms. Frye’s complaint indicates that the pleading requirements of Tuttle have not been met. The complaint contains no allegation of a pattern or series of discriminatory employment practices. In fact, it does not cite a single incident by the Commission or the County as a whole other than the denial of a promotion to the plaintiff. Nor does the complaint assert that the County itself had participated in this employment decision. These omissions are fatal to the Monell claim against the County.

Accordingly, the plaintiff’s claims against Prince George’s County Consumer Protection Commission are dismissed, and her claims against the County and H. Clifton Grandy under 42 U.S.C. § 1983 are dismissed. A separate order will be entered confirming the rulings herein.

      . 42 U.S.C. §§ 2000e to 2000e-17 (1981).

      . 29 U.S.C. §§ 621-634 (1985).

      . In its motion to dismiss, the Commission asserts that it has no capacity to be sued, and that the County alone is the proper government defendant. The plaintiff concedes this point in her memorandum in opposition to the motions. AH claims against the Commission are therefore dismissed.

      . In their initial motions to dismiss, the defendants argued that the Title VII and ADEA claims were barred by the plaintiffs failure to file timely charges with the EEOC and the County Human Relations Commission. This argument was subsequently abandoned when the plaintiff produced a copy of her timely complaint with the State agency.

      . In cases where section 633(b) applies, if state agency proceedings terminate before the three hundred day period expires, the person must file with the EEOC within thirty days of receipt of notice of termination.

      . In McCroan v. Bailey, 543 F.Supp. 1201 (S.D. Ga.1982), the District Court for the Southern District of Georgia arrived at essentially this same conclusion in a case brought under the ADEA and § 1983. The § 1983 claim in McCroan was based not on the equal protection clause, but instead on a violation of the ADEA itself. Relying on a preemption theory and the reasoning of Novotny, the court dismissed the § 1983 claim, declaring the ADEA the exclusive remedy for age discrimination. Id. at 1209.

      . Municipal or county conduct that results in a single incident is not necessarily immune, provided that it is the product of a policy or custom. What is lacking here is a policy or custom. Compare Tuttle with Monell or Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).


author: HALL, District Judge.

text:
    Delma PLOWMAN, for The CHILDREN OF Grady C. WELCH, Deceased, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. TX-83-72-CA.
    United States District Court, E.D. Texas, Texarkana Division.
    Jan. 27, 1986.

      Harry B. Friedman of Harkness, Friedman, Kusin & Condit, Texarkana, Tex., for plaintiff.
    Steve Mason, Asst. U.S. Atty., Tyler, Tex., for defendant.
   MEMORANDUM OPINION AND FINAL ORDER OF REMAND

HALL, District Judge.

This is an appeal from the Secretary’s final decision to reduce the Social Security Survivor’s Benefits of Delma Plowman’s children from Two Thousand Ninety-Eight Dollars and Ninety Cents ($2,098.90) per month to Eight Hundred Ten Dollars ($810.00) per month, based on one (1) of Plaintiff’s four (4) children, Robert E. Wad-kins, attaining the age of eighteen (18) and not being either disabled or a full-time student. On March 3, 1983 an Administrative Law Judge (ALJ) found that the Plowman family’s benefits should be reduced as set forth above [Tr. 5-11], and on May 31,1983 the ALJ’s decision was denied review by the Appeals Council, thereby becoming the final decision of the Secretary. (Tr. 3). Because there is not substantial evidence in the record to support the amount of Plaintiff’s benefits reduction, the case is remanded to the Secretary for further review.

Jurisdiction is vested in this Court by virtue of The Social Security Act, 42 U.S.C. § 405(g) (1983).

On September 25, 1977 Grady C. Welch died. On September 30, 1977 Welch's widow Delma Welch (now Delma Plowman) filed an Application for Surviving Child's Insurance Benefits for her four (4) children on Welch’s account, on the basis that he was the children’s stepfather. (Ex. 2, Tr. 33-36). By letter dated December 28, 1981, Ms. Plowman was notified that effective January 1, 1982, her monthly check would be reduced to Eight Hundred and Ten Dollars ($810.00). (Tr. 63). The reason given for the reduction was that her

“benefit payment amount was based on Robert’s [Robert Wadkins’] entitlement on this account number [Grady Welch’s account] and the account number [of Bobby Wadkins]. Since Robert is no longer entitled to benefits, due to the attainment of age 18, your benefits have been adjusted effective 12/81 so they will not exceed the maximum payable on this account only ” (i.e. on Grady Welch’s account).
(Emphasis added)

In other words, because Robert Wadkins had been entitled to dual benefits, the maximum on both accounts were combined to exceed the statutory family maximum which would have been payable on Grady Welch’s account considered by itself. (Tr. 11, 49, 67). The Plowman family’s maximum benefits could no longer be exceeded when Robert became ineligible for benefits because he was eighteen (18) years of age and neither disabled nor a full-time student. As of January 1, 1982, the Plowman family’s benefits had to be determined solely on the account of Grady C. Welch.

On January 8, 1982 Ms. Plowman filed a Request for Reconsideration [Ex. 17, Tr. 64] and on March 18, 1982 a Reconsideration Determination Report was rendered that the reduction was correct. (Ex. 19, Tr. 66-68). At a hearing held on May 4, 1982, Ms. Plowman testified that she believed that her family’s benefits reduction had been miscalculated, since her benefits were cut from approximately Sixteen Hundred Dollars ($1,600.00) to approximately Eight Hundred Dollars ($800.00). It was stated that Robert had become eighteen (18) years of age and that he was neither disabled nor a full-time student. Ms. Plowman understood that Robert was no longer entitled to benefits.

On March 3, 1983 the ALJ issued a decision holding that Plowman’s benefits were correctly reduced. (Tr. 5-11). However, there is no evidence in the record to indicate the basis of the AU’s conclusion that the benefits reduction was correctly calculated. Assuming, as outlined in footnote 1, that the Plowman family maximum based only on Welch’s account, was approximately Sixteen Hundred Dollars ($1,600.00), there is no evidence to show how the benefits were recalculated to total Eight Hundred Ten Dollars ($810.00). Evidence as to how said benefits were recalculated should be available for review in the Secretary’s records. Although the burden of proof is on a party challenging a reduction in her family’s social security survivor benefits [Eisenhauer v. Mathews, 535 F.2d 681, 687 (2nd Cir.1976)], it is the ALJ’s obligation to develop a full and fair record and his failure to do so authorizes a remand for further hearing. Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.1984).

Accordingly, it is ORDERED, ADJUDGED and DECREED that Defendant’s Motion for Summary Judgment be DENIED and that this cause be REMANDED to the Secretary for reconsideration and the making of additional findings in accordance with this opinion. Because it has been four (4) years since Plaintiff’s benefits were reduced, it is further ORDERED that this case be given priority by the Secretary, and that the taking of any additional evidence and the rendering of all additional findings ordered herein be completed within ninety (90) days of the signing of this memorandum opinion and order.

      . According to a Reconsideration Determination Report [Ex. 19, Tr. 66-68], Ms. Plowman had been receiving payments of One Thousand Eight Hundred and Twenty Dollars and Twenty Cents ($1,820.20) per month effective June 1980 and Two Thousand Ninety-Eight Dollars and Ninety Cents ($2,098.90) effective June 1, 1981. The Plowman family máximums were One Thousand Five Hundred and Ten Dollars ($1,510.00) effective January 1981 and One Thousand Six Hundred Seventy-Nine Dollars and Twenty Cents ($1,679.20) effective June 1981.


author: TERENCE T. EVANS, District Judge.

text:
    Marlene SMITH and Gerald Smith, Plaintiffs, v. SNO EAGLES SNOWMOBILE CLUB, INC.; General Casualty Company of Wisconsin; Headwater Trails, Inc.; Western World Insurance Company, Inc.; Michelle M. Hafer; and State Farm Mutual Automobile Insurance Company, Defendants.
    Civ. A. No. 84-C-859.
    United States District Court, E.D. Wisconsin.
    Jan. 31, 1986.

      Michael Tarnoff, Warshafsky, Rotter, Tarnoff, Gesler & Reinhardt, Milwaukee, Wis., for plaintiffs.
    Michael Eckert, Rhinelander, Wis., L. William Staudenmaier, Cook & Franke, S.C., Timothy Mentkowski, Riordan, Crivello, Carlson & Mentkowski, Milwaukee, Wis., D.J. Weis, Johnson, Weis, Paulson & Priebe, Rhinelander, Wis., for defendants.
   DECISION and ORDER

TERENCE T. EVANS, District Judge.

This personal injury case, here because there is diversity jurisdiction, is before me on the motion for summary judgment of two non-profit corporate defendants, Head-water Trails, Inc. and the Sno Eagles Snowmobile Club. Sno Eagles is a snowmobiling club and Headwater is a snowmobile trail grooming organization. They operate in the Eagle River, Wisconsin, area. The accident in question occurred, according to the complaint, at a place where a snowmobile trail, which runs parallel to Wisconsin State Highway 70 in Vilas County, intersects with a private driveway.

Marlene Smith was injured in the accident when an automobile driven by Michelle Hafer struck her snowmobile while it was running on the trail. Smith has sued Hafer, Sno Eagles, Headwater, and their respective insurance companies, contending that each party’s negligence was a substantial factor contributing to her damages. At the time of the accident, Smith was snowmobiling along the 2 East Trail which was drawn on a trail map, but was unmarked by signs. The trail was planned and constructed by Sno Eagles and groomed by Headwater; and according to them, it was not yet open to the public. Smith specifically alleges that Sno Eagles and Headwater were negligent in the maintenance of the trail, and in failing to mark the site of the Hafer driveway. Moreover, since the defendants assert that the 2 East Trail was not yet open, Smith argues that they were negligent in not so marking the trail.

Sno Eagles is a volunteer organization; its funds come from donations made by tourists and by local businesspersons who wish to encourage tourism. The bulk of organization funds are provided by local businesses. Similarly, Headwater Trails is a non-profit volunteer organization. It works with Sno Eagles, grooming the trails which Sno Eagles constructs. Headwater consists of representatives from five organizations: Sno Eagles, the Lions and Rotary Clubs of Eagle River, the Eagle River Chamber of Commerce, and the city of Eagle River itself. These organizations all contribute money to Headwater: the money collected is used to pay individuals who groom the snowmobile trails. Sno Eagles and Headwater are closely intertwined, and they share a purpose: to construct and groom snowmobile trails.

The land upon which Sno Eagles and Headwater build and groom snowmobile trails consists of government and private land. Sno Eagles secures permission from the landowners to construct trails across their property. Sno Eagles then does whatever is physically necessary to create snowmobile trails on the property. Once the trail is constructed, signs are placed. After a trail is built and the signs placed, Headwater personnel groom it on a regular basis.

Although Headwater’s function is to groom snowmobile trails, it engages in activities which could be defined as construction. These include the removal of tree stumps and bulldozing. The personnel of Sno Eagles and Headwater both engage in the placement of signs. The initial placement of signs is a Sno Eagles job, but when Headwater personnel are out grooming snowmobile trails they carry signs, and if they see a sign is missing they will replace it. Because of the close relationship of the two organizations and their complementary functions, I feel that they should be treated similarly under the law. If one is immune from liability under Wisconsin statutes, both should be. Therefore, my decision on this motion will apply to both defendants.

Sno Eagles and Headwater have moved for summary judgment based on § 895.52, Wis.Stats., or alternatively, § 29.-68, Wis.Stats. Section 29.68 was repealed by the Wisconsin Legislature effective May 15, 1984 and was replaced by § 895.52. Sno Eagles and Headwater contend that § 895.52 is applicable to this case, although they believe that they should be dismissed even if § 29.68 applies. Smith’s accident occurred on December 30, 1983, prior to the effective date of § 895.52, Wis.Stats. Statutes are generally deemed to apply prospectively, unless there is an express statement to the contrary in the legislative history. Gutter v. Seamandel, 103 Wis.2d 1, 308 N.W.2d 403 (1981); Hunter v. School District of Gale-Ettrick Trempealeau, 97 Wis.2d 435, 443, 293 N.W.2d 515 (1980). The exception to the general rule is that a procedural or remedial statute is applied retroactively. Gutter, id. 103 Wis.2d at 17, 293 N.W.2d 515. This exception is qualified by a corollary which requires that where retroactive application of a statute would deprive a party of a distinct vested right, it must be applied prospectively only. Id.

A tort cause of action arises at the time of the injury. The plaintiff’s cause of action here arose on December 30, 1983, and her rights vested at that time. Even if I were to characterize § 895.52 as a remedial or a procedural statute, it could not be applied retroactively to the plaintiff because it would deprive her of her cause of action. Hunter, id., 97 Wis.2d at 446-447, 293 N.W.2d 515.

Had § 895.52, Wis.Stats., been applicable to this case, I would have no difficulty in concluding that Sno Eagles and Headwater were not liable for Smith’s injuries as a matter of law. As it stands, I believe that § 29.68, Wis.Stats., exempts these defendants from liability. Section 29.68 was passed in order to limit a landowner’s liability for injuries incurred by persons who entered upon land for recreation. It was intended to further the recreational use of land by the general public. LePoindevin v. Wilson, 111 Wis.2d 116, 330 N.W.2d 555 (1983). Section 29.68 declares:

(1) ... An owner, lessee, or occupant of premises owes no duty to keep the premises safe for entry or use by others for hunting ... snowmobiling ... or recreational purposes, or to give warning of any unsafe condition or use of or structure or activity on such premises to persons entering for such purpose except as provided in subdivision 3.

Subdivision 3 states:

This section does not limit the liability which would otherwise exist for willful or malicious failure to guard or to warn against a dangerous condition____

Two questions remain for decision: whether Sno Eagles and Headwater come within the purview of § 29.68 as an owner, lessee, or occupant, and if so, whether there is any evidence of willful or malicious conduct, such that they could be liable in spite of being within § 29.68(1).

Section 29.68, Wis.Stats., does not define the terms owner, lessee, or occupant. It is therefore necessary to ascertain what the Legislature intended by examining the general meaning of these terms. Black’s Law Dictionary defines an owner as “the person in whom is vested the ownership, dominion, or title of property.” The term “owner” indicates an individual in whom one or more interests are vested for his own benefit. In contrast, a lessee is “one who rents property from another.” It is clear that Sno Eagles and Headwater are not owners nor lessees within the general meanings of the terms. They do not hold title to the land on which they construct and groom trails, nor do they rent the land from the titled owners.

If the defendants are within the statute they must be within the definition of occupant. I have examined several definitions of the noun occupant. Black’s Law Dictionary defines occupant as:

Person having possessory rights, who can control what goes on on premises. One who has actual use, possession or control of a thing.

Webster’s Third New International Dictionary 1560 (G. & C. Merriam Co. 1976) provides a more varied menu of meanings for occupant:

a: one who takes first possession of something that has no owner and thereby acquires title by occupancy b: one who takes possession under title, lease or tenancy at will 2a: one who occupies a particular place or premises ... b: one who holds a particular post ... 3: one who has actual use or possession of something____

The definition of the verb “to occupy” lends additional meaning to the noun occupant. One of the meanings of the verb “to occupy” is “actual use, possession, and cultivation.” Black’s Law Dictionary. Occupy and occupant include persons who, while not owners or tenants, have the actual use of land.

When construing statutes, courts must attempt to give meaning to every term used by the Legislature. County of Columbia v. Bylewski, 94 Wis.2d 153, 164, 288 N.W.2d 129 (1980). The primary purpose of statutory construction is to determine the intent of the Legislature and to give meaning to that intent. Id. While “occupant” includes definitions of owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to “occupant”, the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner. Plaintiffs argue that “occupant” connotes exclusive use. This construction, however, would render the term “occupant” virtually meaningless, since exclusive possessors and users are usually owners or tenants.

Defendant Hafer, looking for contribution and joining the Smiths on this issue, argued that Sno Eagles and Headwater are properly characterized as licensees and that licensees are not named in § 29.68. Licensees are persons who enter upon land with the permission of the owner, but who enter for their own purposes. I agree that Sno Eagles and Headwater may be characterized as licensees; however, this status does not prevent them from also being classified as occupants. Sno Eagles and Headwater occupied the land to the extent of constructing and grooming snowmobile trails. Excluding these defendants from the purview of § 29.68 would thwart the statute’s purpose.

In enacting § 29.68, the Wisconsin Legislature intended to limit the liability of landowners, lessees, and “occupants,” who opened their land to the public without receiving.valuable consideration in return. See Goodson v. Racine, 61 Wis.2d 554, 559, 213 N.W.2d 16 (1973). The Wisconsin Legislature’s intention would not be furthered by excluding non-profit organizations such as Sno Eagles and Headwater from the purview of § 29.68. Moreover, to limit the definition of “occupant” to an exclusive user, an owner, or a lessee, would render the term redundant. I therefore hold that no.n-profit organizations such as Sno Eagles and Headwater which enter land for a limited purpose, are occupants within the meaning of § 29.68, and that their liability is limited by that statutory section.

Finally, a question remains as to whether Sno Eagles and Headwaters’ conduct may be construed as malicious or willful. The plaintiffs urge that a genuine issue of material fact exists as to the defendants’ intent in failing to mark the 2 East Trail, and that a reasonable jury could find their conduct was willful. Section 29.68(3) does not limit liability for willful conduct. The plaintiffs further assert that they should be given the opportunity to amend their complaint to state a cause of action for willful misconduct, should the defendants be found to be occupants. I disagree with the plaintiffs’ characterization of the facts. The complaint alleges that Sno Eagles and Headwater were negligent in the maintenance of the snowmobile trails and in their failure to adequately mark the trails with safety signs. No facts even remotely pointing to willful misconduct have been presented in the affidavits or the deposition testimony submitted in opposition to defendants’ motions. Willful has been defined as

... a voluntary, conscious and intentional act, done without reasonable cause,
A willful act may also be described as one done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently.

Monday v. United States, 421 F.2d 1210, 1215 (7th Cir.1970), cert. denied 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48. Sno Eagles and Headwaters’ alleged actions in maintaining and marking snowmobile trails do not fall within the rubric of willfulness described by the United States Court of Appeals for the Seventh Circuit. The deposition testimony submitted by plaintiffs reflects, at most, simple negligence in failing to adequately mark the new 2 East Trail.

Therefore, the defendants’ motions for summary judgment are GRANTED.

A conference call with the remaining parties is scheduled for March 11,1986, at 8:30 a.m.