author: BENJAMIN F. GIBSON, District Judge.

text:
    OCCIDENTAL CHEMICAL CORPORATION, Plaintiff, v. LOCAL 820, INTERNATIONAL CHEMICAL WORKERS UNION, Defendant.
    No. G84-402 CA.
    United States District Court, W.D. Michigan, S.D.
    July 23, 1985.
    Thomas P. Gies, Crowell & Moring, Washington, D.C., for plaintiff.
    Barry R. Smith, Miller, Johnson & Cummiskey, Grand Rapids, Mich., for defendant.
   OPINION

BENJAMIN F. GIBSON, District Judge.

This action is brought directly under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to vacate an arbitration award.

Suit was instituted by Occidental Chemical Corporation on April 12, 1984 to vacate an arbitration award which issued on November 10, 1983. Arbitrator Robert G. Howlett found in favor of Mr. E.A. Shirtum, a retired Occidental employee, and required that Mr. Shirtum’s pension benefits be calculated without including a “service ratio reduction factor” (SRRF). The collective bargaining agreement between Occidental and Local 820, of which Mr. Shirtum was a member, required that employees retire in accordance with the provisions of company’s retirement program, which includes a pension plan. The pension plan documents contain the terms of the plan.

It is undisputed that the SRRF calculation was included in the company’s 1974 and 1976 pension plan documents. It further appears from the record that the 1980 pension plan includes the SRRF calculation.

Following the installation of the 1976 plan, Occidental retained new actuaries who drafted a new pension plan. The new plan, which became effective January 1, 1977, did not contain the SRRF provision. The company alleges the SRRF was omitted due to an oversight, and that the company, the union and the employees understood that pension benefits were to be computed using it. The company further alleges it was unaware the SRRF was omitted until 1981, at which time it drafted a pension plan using the SRRF calculation.

Mr. Shirtum contends he relied on the 1977 pension plan documents when he elected to retire. The company, however, applied the SRRF to his pension benefit calculation, and reduced his pension benefits accordingly.

Mr. Shirtum filed a grievance on August 6, 1982. The parties agreed to an arbitration, which was held on April 29, 1983. The award issued November 10, 1983. This matter is now before the Court on cross-motions for vacation and enforcement of Arbitrator Howlett’s award. After a thorough consideration of the briefs, and having heard the arguments of counsel, the Court is of the opinion that plaintiff’s suit to vacate the award is time-barred by the provisions of the United States Arbitration Act of 1925, 9 U.S.C. § 12. Therefore, plaintiff’s motion to vacate the award is denied, and this case is dismissed.

DISCUSSION

In DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court ruled that the six month limitations period of § 10(b) of the National Labor Relations Act is applicable to the employee’s breach of duty of fair representation claim against his union and breach of collective bargaining agreement claim against his employer. The Court adopted § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), because § 301 of the Labor Management Relations Act does not contain a limitations period. Prior to DelCostello, the courts looked to “the nature of the cause of action” and applied the most analogous state statute of limitations to claims brought under § 301. See Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) (suit by union against company for breach of collective bargaining agreement).

Although DelCostello establishes a statute of limitations period for hybrid claims under § 301, it does not address actions arising solely under § 301 or, more specifically, suits to vacate arbitration awards brought directly under § 301. See DelCostello, 452 U.S. at 158-59, 103 S.Ct. at 2287, fn. 12. Every court of appeals which has considered this issue in the arbitration context has concluded the holding of DelCostello does not apply to such suits. Federation v. Westinghouse Electric Corp., 736 F.2d 896 (3rd Cir.1984) (suit to compel arbitration, applying the six month period of § 10(b) by analogy); United Brotherhood of Carpenters and Joiners v. FMC Corp., 724 F.2d 815 (9th Cir.1984) (suit to vacate arbitration, applying 20 day state statute); International Union of Electrical, Radio and Machine Workers v. Ingram Mfg. Co., 715 F.2d 886 (5th Cir.1983) en banc denied 710 F.2d 677 (suit to enforce arbitration, applying four year state “catch — all” statute); Derwin v. General Dynamics Corp., 719 F.2d 484 (1st Cir.1983) (suit to confirm arbitration, applying either six or twenty year state statute).

Michigan’s statute of limitations applicable to actions to vacate arbitration expressly excludes “collective bargaining contracts between employers and employees.” M.C. L.A. § 600.5001(3). Therefore, this section is inapplicable to actions under § 301. Badon v. General Motors Corp., 679 F.2d 93, 98 (6th Cir.1982). However, this Court concludes that the federal labor policies identified in DelCostello are best protected by adoption of the three month period of the United States Arbitration Act. Because DelCostello represents a new approach, based more on labor policy considerations than on the former practice of pigeonholing a § 301 claim in an “analogous state claim” category, some discussion of legal background is necessary.

a. Hoosier Cardinal and the analogous state claim analysis.

The Court in United Auto Workers v. Hoosier Cardinal, 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) likened the union’s § 301 claim to a contract action and adopted Indiana’s six year statute applicable to actions for breach of oral contracts, the Court having found that the union’s claim was partly based on the written collective bargaining agreement and partly based on “the oral employment contract each employee had made” with the company. 383 U.S. at 699, 86 S.Ct. at 1110. Had the Court not construed the contract as being of a hybrid nature (in the part written-part oral sense), the alternative was to apply Indiana’s twenty year limitations period applicable to written contracts.

In electing to apply the shorter limitations period, the Court also relied on the federal policy favoring rapid disposition of labor disputes. Hoosier Cardinal, 383 U.S. at 707, 86 S.Ct. at 1114. The Court cited the six months limitations period of § 10(b) of the NLRA as embodying this policy, but reasoned that had Congress intended to also include such a limitation in § 301 suits, it would have done so. The Court rejected the argument that there is a need for a uniform standard with regard to limitations periods, concluding a lack of uniformity in this area is “unlikely to frustrate in any important way the achievement of any significant goal of labor policy.” 383 U.S. at 702, 86 S.Ct. at 111.

The Court in Hoosier Cardinal also relied on a line of cases which hold that state statutes of limitations govern the timeliness of federal causes of action unless Congress has specifically provided otherwise. The Court cited cases applying this rule which date back to 1895, and stated “... when Congress has disagreed with such an interpretation of its silence, it has spoken to overturn it by enacting a uniform period of limitations.” 383 U.S. at 704, 86 S.Ct. at 1112 (citations omitted).

So, although the Hoosier Cardinal court recognized a federal interest in rapid disposition of labor disputes, it reasoned that the practice of federalizing analogous state statutes of limitations would not frustrate any federal labor goals.

The rule of Hoosier Cardinal was applied to actions to vacate arbitration awards, such as the action presently before this Court, in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). In Mitchell, though, the Court made clear that the only issue before it was which state limitations period to apply, New York’s six year statute governing contract claims or New York’s 90 day period for actions to vacate arbitration awards. The Court made clear that it was not passing on the question of whether adoption of a uniform standard is appropriate. See Mitchell, 451 U.S. at 61, 101 S.Ct. 1562, fn. 2.

b. Mitchell; toward policy-based limitations.

Although the Hoosier Cardinal court applied the six-year period to the breach of collective bargaining agreement claim, the Mitchell court adopted the 90 day period (applicable to state actions to vacate arbitration awards) to § 301 suits to vacate arbitration awards. The court in Mitchell made clear that such § 301 suits stand on a different footing than breach of collective bargaining agreement suits, such that separate policy considerations should attach to decisions about the proper amount of time to be given to a party seeking to disturb an arbitration award. It appears to this Court that the Court in Mitchell sought to apply a limitations period which protects the integrity of the grievance process in labor relations, and, specifically, the arbitration process as a fundamental element of that system.

It is important to bear in mind the observations made in the Steelworkers Trilogy that “the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government____ The processing ... machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement.” Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). Although the present case involves a fairly mundane and discrete wrongful discharge complaint, the grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union. See, e.g., Humphrey v. Moore [375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370] supra (seniority rights of all employees). This system, with its heavy emphasis on grievance, arbitration, and the “law of the shop,” could easily become unworkable if a decision which has given “meaning and content” to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as six years later.

Mitchell, 451 U.S. at 64-65, 101 S.Ct. at 1564-65.

Whereas the Hoosier Cardinal court relied on the “nature of the cause of action” in applying the most analogous state statute of limitations, the Mitchell court relied much more on policy considerations. Therefore, the statement that a lack of uniformity in this area is “unlikely to frustrate in any important way the achievement of any significant goal of labor policy,” made by the Hoosier Cardinal court, could be seriously disputed.

The theoretical underpinnings of Hoosier Cardinal were further eroded in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Also, the Del-Costello court maintained the distinction, for statute of limitations purposes, between hybrid § 301 suits and actions to vacate arbitration awards.

c. DelCostello.

The Court in DelCostello did adopt a uniform limitations period for hybrid claims. Further, the Court again selected a limitations period in accordance with “the national interests in stable bargaining relationships and finality of private settlements.” DelCostello, 462 U.S. at 171, 103 S.Ct. at 2294 (citing Mitchell, 451 U.S. at 70-71, 101 S.Ct. at 1567-68, Stewart, J., concurring). Most importantly for present purposes, the Court clearly indicated that these policy interests require a shorter period in actions to vacate arbitration agreements than in hybrid § 301 suits.

The court pointed out that in Mitchell it analogized the employee’s claim to a suit to vacate an arbitration award in a commercial setting. It then distinguished such cases from hybrid claims. “The main difference is that a party to a commercial arbitration will ordinarily be represented by counsel or, at least, will have some experience in matters of commercial dealings and contract negotiation. Moreover, an action to vacate a commercial arbitral award will rarely raise any issues not already presented and contested in the arbitration proceeding itself.” DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291.

These points also distinguish hybrid claims from suits to vacate labor arbitrations. The present case is illustrative. Both parties were represented at the arbitration by experienced labor representatives. The employee was represented by Mr. Clarence W. Gipson, an international representative of the union. The company, the party seeking to vacate the award here, was represented by counsel, Mr. Thomas P. Gies, who also represents the company in this litigation.

Also, unlike hybrid causes, suits to vacate labor arbitration call upon the district courts to review the same issues which were before the arbitrator, albeit only to consider whether the conclusions about those issues draw their essence from the collective bargaining agreement. See e.g., United Steelworkers v. Enterprise Wheel and Car Corp. 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

In addition to these differences, the Court noted the difficulty of detecting and mustering evidence to show the union’s breach of duty in hybrid cases, as well as the difficulty in ascertaining when the hybrid claim accrued. In suits to vacate labor arbitration, the evidence is usually limited to events presented in the arbitration hearing. The problem of pinpointing the accrual of a cause of action is virtually nonexistent, such claims accruing when the arbitrator’s decision is rendered.

So, the analogy made in Mitchell, and reaffirmed in DelCostello, between commercial and labor arbitration is clearly an appropriate one. In addition, the policy considerations set forth by the Court in those two cases clearly dictate that parties seeking to disturb an arbitrator’s award— agreed between the parties through collective bargaining to be the final and binding stage of the grievance process — do so quickly, or have its right to do so cut off.

The Supreme Court in Mitchell and Del-Costello applied considerations of labor policy to fill the void left by the omission in § 301 of a limitations period. These cases establish that a party seeking to assert a hybrid § 301 claim should do so quickly; and that a party seeking to assert a § 301 claim to vacate an arbitration award should do so quicker still. It is with these considerations in mind that the Court will consider the applicable period under the present circumstances.

d. The applicable period.

The defendant contends that the Court has two options available: the 21 day period applicable to state actions to vacate arbitration awards, G.C.R. 769.9(2) (governing procedures for statutory arbitration under M.C.L.A. 600.5001), or the 3 month period under the United States Arbitration Act, 9 U.S.C. § 12.

The Mitchell case requires that state arbitration statutes apply. Here, as is noted earlier, the terms of the state statute exclude its application to collective bargaining agreements. M.C.L.A. 600.5001(3). When requested to apply the 21 day provision in a hybrid § 301 case, the Sixth Circuit ruled that “[t]he state has enunciated a clear policy relating labor disputes to the vacation of arbitration awards and this court, under the combined effect of Hoosier Cardinal and Mitchell is bound by that decision.” Badon v. General Motors Corp., 679 F.2d 93, 99 (6th Cir.1982). Likewise, this Court is bound by the Sixth Circuit’s construction of Michigan’s arbitration rule, and concludes, consistent with the express language of the rule and the Badon decision, that it is inapplicable to § 301 suits to vacate arbitration.

Therefore, the Court concludes that the 3 month period in the United States Arbitration Act should apply. The three month period reflects the federal policy of quickly cutting off the ability of a party to upset an arbitration award.

This policy, with its emphasis on private dispute settlement, is embodied in § 12 as well as in the state limitations periods governing arbitration. In 1982, 28 of the 42 state arbitration statutes contained limitation periods of 90 days; 9 were shorter, 3 of the periods were based on the term of court, and only 2 states had periods longer than 90 days. Mitchell, 451 U.S. at 64, 101 S.Ct. at 1564, fn. 5. The Michigan statute allows an aggrieved party only 21 days to sue to upset an award.

Other courts have refused to apply the limitation periods in the Arbitration Act. International Union of Electrical, Radio and Machine Workers v. Ingram, Man’g Co., 715 F.2d 886 (5th Cir.1983); Derwin v. General Dynamics Corp. 719 F.2d 484 (1st Cir.1983). However, this court is of the opinion that the Ingram decision, involving a state statute which excluded collective bargaining agreements, runs contrary to the federal labor policy by adopting of a 4 year period. The Derwin decision does not involve a state statute which excludes collective bargaining agreements from coverage, so the court had an available state statute.

This Court concludes that § 12 of the Arbitration Act best accommodates the federal interests at stake in suits to vacate arbitration, and shall apply it to the matter presently before the Court.

CONCLUSION

This suit was filed on April 12, 1984, 153 days after the award was issued. Section 12 provides for three months in which to seek to vacate such awards. The plaintiff having failed to sue within the 3 month period, his § 301 suit is barred. Therefore, the plaintiff’s motion to vacate arbitration is denied, and this case is dismissed.

      . A service ratio reduction factor is a calculation used in determining monthly pension benefits. Its purpose is to reduce the benefits of workers taking early retirement. It is a fraction, having as its numerator the total number of years worked at Occidental, and as its denominator the total number of years worked if the employee were to retire at age 62. (If the employee retires at 62 the fraction is 1.) This fraction is then multiplied by the pension amount.

      . The Court reasoned that the claim at issue was hybrid (in the oral/written sense) because proof of the existence and duration of the employment contract was necessary to establish damages for breach of the collective bargaining agreement. The plaintiffs were seeking to recover accumulated vacation pay.

      . The AFL-CIO appeared as amicus curiae before the Supreme Court and urged the Court to adopt the six month period in § 10(b) of the NLRA. At footnote 2, the Court indicated that since certiorari was granted on the issue of which state period should apply, it declined to consider the applicability of § 10(b).

      . 9 U.S.C. § 12 provides:
      NOTICE OF MOTIONS TO VACATE OR MODIFY; SERVICE; STAY OR PROCEEDINGS Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverse party shall be a nonresident then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court. For the purposes of the motion any judge who might make an order to stay the proceedings in an action brought in the same court may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.
      The Act expressly applies to "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... or an agreement in writing to arbitration an existing controversy arising out of such a contract, transaction____”
      The Court notes that, unlike § 12 governing motions to vacate, the Act provides a one year period in which any party may move to confirm the arbitration award. See 9 U.S.C. § 9. The adoption by the Congress of a shorter period with respect to vacating awards is consistent with the states’ policy of quickly cutting off the ability of a party to upset a decision made by an uninterested third party.

      . The defendant cites Stevens v. Gateway Transportation Co., 696 F.2d 500, 501 (7th Cir.1982) for the proposition that the court can adopt state arbitration limitations periods despite express language excluding collective bargaining agreements. However, the Seventh Circuit in Stevens did not expressly adopt the Illinois statute. It did not rule whether the state 90 day statute or § 10(b) of the NLRA applied, since the § 301 claim was barred under both rules. More importantly for present purposes, the Stevens decision would have directly conflicted with the Badon decision in this circuit had it adopted the Illinois statute, and this Court is of course bound to follow the Sixth Circuit in such situations.


source: Caselaw Access Project

author: DECKER, Senior District Judge.

license: Public Domain

text:
    Paul H. MOORE, Plaintiff, v. Theodore FLORO, et al., Defendants.
    No. 84 C 10824.
    United States District Court, N.D. Illinois, E.D.
    July 23, 1985.

      Kenneth N. Flaxman, Kenneth N. Flax-man, P.C., Chicago, Ill., for plaintiff.
   MEMORANDUM OPINION AND ORDER

DECKER, Senior District Judge.

Paul H. Moore (Moore) brought this civil rights action pursuant to 42 U.S.C. § 1983. Moore alleges that the six defendants violated his constitutional rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments. The case is before the court on defendants’ two motions to dismiss the complaint.

I. Factual Background

The complaint contains the following allegations. Moore was formerly employed as an investigator by the public defender’s office of McHenry County, Illinois. In 1979, defendant Theodore Floro (Floro) served as the state’s attorney of McHenry County. On December 21, 1979, Moore attended Floro’s Christmas party. At the party, Floro angrily told Moore to leave “before I break your skull.” Complaint at 117. After complying with this threat, Moore was beaten by defendants Charles Terrell (Terrell) and Keith Grabrowski (Grabrowski), deputy sheriffs of McHenry County. Id. at II8. Terrell and Grabrowski acted with the belief that they would be immune from prosecution because of Floro’s disdain of Moore. Id. at 119. As a result of the beating, Moore suffered se.vere head injuries, including a fractured skull. Id. at 118.

Immediately after the beating, Moore was taken into custody by officers of the Woodstock police department under the direction of defendant Michael Fischer (Fischer), a police officer. Id. at II10. While at the police station, Moore requested medical treatment; neither Fischer nor Floro responded. Id. at 1T1111-12. In addition, defendant Steven Bozer (Bozer), another police officer, took a photograph of Moore. Under Fischer’s supervision, Bozer only photographed the side of Moore’s face unscathed by the beating. Id. at ¶ 13.

As a result of this incident, Moore was charged with aggravated battery. In November, 1980, Moore was acquitted after a criminal trial at which he testified. Id. at H 14. Subsequently, because Moore’s successful trial defense embarrassed Floro, defendant Robert Willbrandt (Willbrandt), the public defender of McHenry County, discharged Moore from his employment. Id. at MI 14-16.

Moore brought this § 1983 action on December 19, 1984. Floro moves to dismiss the complaint for failure to state a cause of action. The remaining defendants separately move to dismiss the complaint on the basis of untimeliness.

II. Discussion

On April 17, 1985, the . Supreme Court held for the first time that § 1983 claims are best characterized as personal injury actions for limitations purposes. Wilson v. Garcia, — U.S.-, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985). Consequently, in furtherance of the federal policies of uniformity, certainty, and the minimization of unnecessary litigation, the Supreme Court upheld the application of a state personal injury statute of limitations to a § 1983 action. Id. at 1947-49. The threshold question presented by this case is whether Wilson v. Garcia should be applied retroactively to bar Moore’s suit.

A. Retroactivity

Because prospective-only application is the exception rather than the rule, the party seeking to invoke the principle of nonretroactivity bears the burden of proving that such limited application is justified. See Valencia v. Anderson Bros. Ford, 617 F.2d 1278, 1288 (7th Cir.1980), rev’d on other grounds, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981). The Supreme Court has delineated the following tripartite analysis to determine whether a civil, nonconstitutional judicial decision will be denied full retroactive effect:

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 nonretroaetivity.”

Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) (citations omitted). This approach has “ ‘consistently been utilized where changes in statutes of limitations or other aspects of the timeliness of a claim are at issue.’” E.E.O.C. v. Gaddis, 733 F.2d 1373, 1377 (10th Cir.1984) (quoting Occhino v. U.S., 686 F.2d 1302, 1308 n. 7 (8th Cir.1982)). In the Seventh Circuit, all three factors listed in Chevron Oil must favor prospective-only application before a decision will be denied retroactive effect. See, e.g., Valencia, 617 F.2d at 1289; but cf. Jordan v. Weaver, 472 F.2d 985, 996 (7th Cir.1973) (adopting in dicta a “threshold” test), rev’d on other grounds sub nom. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

Under Chevron Oil, retroactivity is appropriate here unless Wilson v. Garcia establishes a new principle of law. As defendants concede, Beard v. Robinson, 563 F.2d 331 (7th Cir.1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978), stated the law in Illinois prior to Wilson. Resolving a conflict within the circuit, the Seventh Circuit in Beard held that the five-year Illinois residual statute of limitations applied to statutory claims brought under the Civil Rights Acts, including 42 U.S.C. § 1983. 563 F.2d at 338 (reaffirming Wakat v. Harlib, 253 F.2d 59 (7th Cir.1958)). In so holding, the Seventh Circuit squarely rejected the application of the two-year Illinois personal injury statute of limitations later mandated by the Supreme Court because of the “fundamental differences” between a civil rights action and a common law tort. Id. at 336-37. Far from being reversed, Beard was subsequently followed or cited with approval by the Seventh Circuit and numerous federal district courts in Illinois. See, e.g., Kolar v. County of Sangamon, 756 F.2d 564, 567 (7th Cir.1985); Sacks Brothers Loan Co. v. Cunningham, 578 F.2d 172, 176 (7th Cir.1978); Lawson v. Metropolitan Sanitary District, 102 F.R.D. 783, 794 (N.D.Ill.1983); Killingham v. Board of Governors, 549 F.Supp. 225, 226-27 (N.D.Ill.1982); Hampton v. Hanrahan, 522 F.Supp. 140, 142 (N.D.Ill.1981).

Beard, as well as the cases just cited, was good law in this district when Moore’s cause of action accrued in 1979 and when he filed his suit in 1984. Thus, these eases constitute clear past precedent upon which Moore, his attorney, and others similarly situated in Illinois, may have relied. The new rule announced in Wilson v. Garcia not only effectively overrules this line of precedent, but also makes a “clear break” with the past, see, e.g., U.S. v. Johnson, 457 U.S. 537, 550 n. 12, 551, 102 S.Ct. 2579, 2587 n. 12, 2588, 73 L.Ed.2d 202 (1982); Hanover Shoe, Inc. v. U.S. Shoe Machinery Corp., 392 U.S. 481, 498, 88 S.Ct. 2224, 2234, 20 L.Ed.2d 1231 (1968), and disapproves a practice arguably sanctioned by the Supreme Court in prior cases. Cf. Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 488, 100 S.Ct. 1790, 1794-95, 1797, 64 L.Ed.2d 440 (1980) (courts must identify and apply statute of limitations of the state claim most closely analogous to the particular § 1983 claim at issue, as opposed to § 1983 claims in general); Campbell v. Haverhill, 155 U.S. 610, 616, 15 S.Ct. 217, 219, 39 L.Ed. 280 (1895). Thus, the crucial first step in the Chevron Oil analysis is satisfied here.

Furthermore, Wilson v. Garcia involved an issue of first impression before the Supreme Court whose resolution was not clearly foreshadowed. The dissent in Wilson chastises the majority for “jettisoning” a rule of venerable, though haphazard, application. 105 S.Ct. at 1949, 1951 (O’Connor, J., dissenting). Moreover, the primary rationale for the majority’s holding was to remedy the “conflict, confusion, and uncertainty” among courts and practitioners regarding the appropriate statute of limitations to apply to this ubiquitous civil rights statute. E.g., 105 S.Ct. at 1942, 1945 n. 25, 1946 n. 32. Prior to Wilson, opinion differed among and even within federal circuits over the appropriate statute of limitations. In this state of uncertainty, prediction as to which way the Supreme Court would turn was unclear. Thus, Wilson definitively establishes a new and uniform principle of law.

Second, Wilson weighed the broad remedial purposes of § 1983 as well as the policies of uniformity, certainty, and the minimization of unnecessary litigation. On the one hand, to bar Moore’s suit retroactively would be inimical to the beneficent purpose of Congress in enacting § 1983. On the other hand, it would be conducive, in an arbitrary manner, to the federal interests of uniformity and certainty. On balance, the court cannot say that retrospective application in this case would clearly hamper or promote the Supreme Court’s goals. Cf. Jackson v. City of Bloomfield, 731 F.2d 652, 654-55 (10th Cir.1984). Thus, the second factor of the Chevron Oil analysis is not alone determinative.

Finally, the court concludes that retroactivity would impose a substantial inquiry in this case. At the time this suit was filed, Beard was clear authority that the five-year Illinois residual statute of limitations governed § 1983 actions brought in this state. Responsible counsel could have justifiably relied on Beard to infer that this suit was filed timely. Retroactive application of the two-year personal injury statute of limitations would deprive Moore of any remedy whatsoever on the basis of a change in the law occurring after his action was filed. See Chevron Oil, 404 U.S. at 108, 92 S.Ct. at 356; Jackson, 731 F.2d at 655; Winston v. Sanders, supra note 3.

In sum, upon consideration of the Chevron Oil factors, the court holds that Wilson v. Garcia should not be applied retroactively in this case. The touchstone of the doctrine of nonretroactivity is the protection of litigants and lawyers, who have justifiably relied on an old rule, from the unfair burden of an unexpected change in the law. E.g., U.S. v. Johnson, 457 U.S. at 550 n. 12, 102 S.Ct. at 2587 n. 12; Milton v. Wainwright, 407 U.S. 371, 381-82 n. 2, 92 S.Ct. 2174, 2179-80 n. 2, 33 L.Ed.2d 1 (1972) (Stewart, J., dissenting); see Note, supra note 2, at 136-37. Adhering to this rationale, the court holds only that Illinois litigants and lawyers could have justifiably relied on clear Seventh Circuit precedent that was controlling until the advent of Wilson v. Garcia. Even assuming that retroactivity might further some of the concerns addressed by the Supreme Court, this factor is greatly outweighed by the manifest injustice that would result in mechanically shortening the limitations period. See Jackson, 731 F.2d at 655; Abbitt v. Franklin, 731 F.2d 661, 664 (10th Cir.1984) (en banc); see also N.L.R.B. v. Chicago Marine Containers, Inc., 745 F.2d 493, 499 (7th Cir.1984). The court will not bar plaintiffs right to a day in court under these circumstances. Accord, Winston v. Sanders, supra note 3; cf. Gaddis, 733 F.2d at 1378; Abbitt, 731 F.2d at 664; Jackson, 731 F.2d at 655.

B. Motions To Dismiss

It is well-settled that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Although all of its allegations must be taken as true on a motion to dismiss, the complaint must “contain either direct allegations on every material point necessary to sustain a recovery on any legal theory ... or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Sutliff Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir.1984).

1. Floro

Moore asserts that Floro violated his Fourth and Fourteenth Amendment rights by — 1) encouraging Terrell and Grabrowski to beat Moore by threatening him at the Christmas party and 2) denying Moore medical treatment. Complaint at ¶¶ 18-19. Since neither of these acts is “intimately associated with the judicial phase of the criminal process,” Floro is clearly not entitled to the absolute prosecutorial immunity that he demands. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976).

Nevertheless, the court concludes that both counts fail to state a cause of action. First, plaintiff seeks to hold Floro liable for Moore’s injuries solely because two other defendants overheard Floro’s threat and therefore assumed they could attack Moore with impunity. This convoluted contention, involving a double set of subjective inferences, is too remote and speculative to sustain a § 1983 action in federal court. Regardless of Floro’s feelings, to establish a constitutional violation under § 1983, plaintiff must allege some affirmative conduct on the part of Floro that evidences a causal connection between his statement at the party and the later beating. Because Moore does not allege that Floro directly incited, solicited, aided, or attempted to aid Terrell and Grabrowski, or was otherwise responsible for their actions, Floro cannot be held liable for their alleged misdeeds.

Second, plaintiff fails to allege or substantiate an affirmative duty on the part of Floro to order medical treatment for Moore. Plaintiff merely asserts that Floro had the power, as state’s attorney, to order such treatment. Having the power and having a legal obligation to do something are two markedly different concepts. Even if Moore’s pleading is sufficient, it does little good to allege a non-existent legal duty. The court is unaware of any case or rule of law, and plaintiff cites none, imposing such an affirmative duty on a prosecutor absent, as here, any direct or conspiratorial responsibility for the injuries.

Accordingly, the court grants Floro’s motion to dismiss the complaint as to him.

2. Willbrandt

The complaint alleges that Willbrandt discharged Moore from his employment for the exercise of his First Amendment rights. Complaint at If 21. Under a liberal construction of the complaint, the protected speech appears to be Moore’s successful defense at his criminal trial. Id. at If 14.

Willbrandt argues that Moore fails to state a claim for retaliatory discharge because his speech is not constitutionally protected. The court rejects this argument. “[T]he first amendment protects the right to testify truthfully at trial.” Smith v. Hightower, 693 F.2d 359, 368 (5th Cir.1982). Furthermore, the court holds that truthful testimony of a public employee at trial, particularly when the employee is a criminal defendant, involves, by definition, matters of public interest and is therefore protected speech under the recent Supreme Court analysis in Connick v. Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708 (1983).

Accepting his allegations as true, the court concludes that Moore sufficiently states a claim under § 1983 for retaliatory discharge on the basis of constitutionally protected speech.

3. The Remaining Defendants

Because the court has already rejected the statute of limitations defense, the only basis for the other defendants’ motion to dismiss is laches. The equitable doctrine of laches, however, does not apply to this action at law. See, e.g., Nemkov v. O’Hare Chicago Corp., 592 F.2d 351, 354 (7th Cir.1979). Since the remaining defendants raise no additional arguments, their motion to dismiss is denied.

III. Conclusion

For the foregoing reasons, the court grants defendant Floro’s motion to dismiss the complaint but denies the remaining defendants’ motion. Accordingly, the complaint is dismissed only as to Floro.

      . Illinois has a two-year personal injury statute of limitations. Ill.Rev.Stat. ch. 110, § 13-202 (1983). Because Moore did not file this action until December 19, 1984, the court assumes that all of his claims would be time-barred under Wilson v. Garcia since each arose long before December 19, 1982. In addition, Illinois has a five-year statute of limitations governing “all civil actions not otherwise provided for.” Ill.Rev.Stat. ch. 110, § 13-205 (1983). This statute generally applies to those statutory causes of action that do not contain their own limitations period.

      . Notable among the prolific body of commentary attesting to the recent, often unpredictable, application of the prospectivity doctrine by the Supreme Court are Schaefer, Prospective Rulings: Two Perspectives, 1982 Sup.Ct.Rev. 1, and Note, Confusion in Federal Courts: Application of the Chevron Test in Retroactive-Prospective Decisions, 1985 U.Ill.L.Rev. 117 [hereinafter cited as Note].

      . There is a conflict among the federal courts that have addressed the retroactivity of Wilson v. Garcia. At the outset, the court notes that the Tenth Circuit consistently and persuasively declined to grant its opinion in Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984), aff'd, — U.S.-, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) retrospective effect. Jackson v. City of Bloomfield, 731 F.2d 652, 655 (10th Cir.1984) (en banc); see also E.E.O.C. v. Gaddis, 733 F.2d 1373, 1378 (10th Cir.1984); Abbitt v. Franklin, 731 F.2d 661, 664 (10th Cir.1984) (en banc). The Supreme Court referred to Jackson's holding of nonretroactivity without comment. 105 S.Ct. at 1942 n. 10. With respect to the Supreme Court’s opinion, the Third Circuit, applying the Chevron Oil factors, has ruled in favor of retroactivity. Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.1985). Conceding that Wilson represents an analytical break with past decisions, Smith largely turned on the absence of clear precedent within the Third Circuit on which plaintiffs could have reasonably relied. Id. Unlike the Seventh Circuit, the Third Circuit had not yet chosen the appropriate statute of limitations at the time plaintiff filed his § 1983 action. In fact, several federal courts had applied the Pennsylvania personal injury statute of limitations later mandated by the Supreme Court. Id. The Third Circuit distinguished the Tenth Circuit decisions mentioned above on these grounds. Id.; see also Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985) (dicta in footnote applying Wibon retrospectively).
      On the other hand, Judge Sharp, sitting by designation, has recently held that Wibon v. Garcia should be applied prospectively only in Illinois. Winston v. Sanders, 610 F.Supp. 176 (C.D.Ill.1985). Winston emphasizes the massive reliance placed by litigants and lawyers on Beard v. Robinson, 563 F.2d 331 (7th Cir.1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978). See infra p. 332. In sum, Winston convincingly demonstrates that each of the Chevron Oil factors weighs against retroactivity in Illinois.

      . It is true that the Seventh Circuit subsequently applied Indiana's two-year personal injury statute of limitations to a civil rights action under 42 U.S.C. § 1981 in Movement For Opportunity and Equality v. General Motors Corp., 622 F.2d 1235, 1243-44 (7th Cir.1980). The court, however, reaffirmed Beard and based its holding on the peculiar choices of limitations periods provided by Indiana statute. Id. at 1242. In particular, the Seventh Circuit emphasized that it was applying Indiana rather than Illinois law in Movement. Id. at 1241. Thus, the case in no way detracts from the precedential force of Beard in Illinois.

      . Although a diligent attorney should take notice of possible contrary authority in other jurisdictions, he is entitled to rely on a final decision that is unimpeached in his own jurisdiction. Because the appropriate statute of limitations in a § 1983 action varies from state to state, the court considers the reliance of Illinois attorneys and litigants, including Moore. Cf. Simpson v. Director, Office of Workers’ Compensation Programs, 681 F.2d 81, 85-86 (1st Cir.1982) (court must look to general societal reliance), cert. denied, 459 U.S. 1127, 103 S.Ct. 762, 74 L.Ed.2d 977 (1983); Wachovia Bank and Trust Co. v. National Student Marketing Corp., 650 F.2d 342, 347-48 (D.C.Cir.1980) (court must look only to reliance of particular parties before the court), cert. denied, 452 U.S. 954, 101 S.Ct. 3098, 69 L.Ed.2d 965 (1981); cf. also Note, supra note 2, at 129-32.

      . In a single sentence at the end of a recent criminal decision, a unanimous Supreme Court summarily rejected an argument against retroactive application of a prior ruling. U.S. v. Rodgers, 466 U.S. 475, 104 S.Ct. 1942, 1949, 80 L.Ed.2d 492 (1984). Without citing any authority, the Supreme Court noted that, even if the respondent could establish reliance on an Eighth Circuit case “on the books ... for a number of years," the Court would still apply its decision retrospectively “since the existence of conflicting cases from other courts of appeals made review of that issue by this Court and decision against the position of the respondent reasonably foreseeable.” Id. at 1948-49. Although this bare pronouncement has not been cited by any published federal decision, it arguably seems to suggest that whenever there is a split of opinion on an important issue among federal courts of appeals, review by the Supreme Court is foreseeable, and the reliance factor central to the prospectivity doctrine is meaningless. Cf. U.S. v. Johnson, 457 U.S. 537, 551, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202 (1982). Such a construction would sweep far too broadly. In contrast, less than two months before its decision in Rodgers, the Supreme Court, in Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 1345, 79 L.Ed.2d 579 (1984), held that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) should not be applied retroactively. The Court concluded that Edwards was not "clearly” or "distinctly” foreshadowed, in part because it resolved an unsettled question of law over which the lower courts widely disagreed. 104 S.Ct. at 1344-45. In these circumstances, the Court considered the reliance factor to be compelling, even though Edwards did not overrule a specific decision. Id. at 1345.
      Confronted with these contemporaneous, yet apparently conflicting signals from the Supreme Court, this court concludes that Rodgers does not foreclose the nonretroactive application of Wilson v. Garcia. First, Rodgers, like Salem, is a criminal case. The Court’s retroactivity opinions in the criminal field expressly acknowledge the vitality of the Chevron Oil test with respect to civil cases. E.g., U.S. v. Johnson, 457 U.S. at 550 n. 12, 102 S.Ct. at n. 12.
      More importantly, the Rodgers statement, taken to its logical extreme, would vitiate sub silentio the three-prong Chevron Oil test by mandating retroactivity whenever there is a difference of opinion between any two federal courts of appeals. As a practical matter, because the Supreme Court often weighs heavily the existence of a conflict among the lower courts in granting certiorari, the potential for prospective-only rulings would be dramatically diminished. Under this scenario, the only reliable authority would be that published in the United States Reports. The court does not construe Rodgers as holding that parties may not reasonably rely upon any legal pronouncement emanating from sources other than the Supreme Court. See U.S. v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374 (1975); but cf. U.S. v. Johnson, 457 U.S. at 551, 102 S.Ct. at 2587.

      . This conclusion does not foreclose a finding of nonretroactivity. The court does not read the Seventh Circuit’s gloss that all three factors of the Chevron Oil test must be shown to favor prospective-only application as a mechanical requirement. See, e.g., Valencia, 617 F.2d at 1289; cf. Jordan, 472 F.2d at 996. Rather, the court interprets the Chevron Oil test flexibly, as the Supreme Court and the Tenth Circuit have, with the underlying principle of the prospectivity doctrine foremost in mind. See infra p. 334. As long as the second Chevron Oil factor does not support retroactive application, if the other two factors strongly favor nonretroactivity, the court sees no reason not to limit the application of a decision to prospective-only.

      . The Seventh Circuit’s opinion in Landahl v. PPG Industries, Inc., 746 F.2d 1312 (7th Cir.1984), granting retroactive effect to the Supreme Court’s rule in Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), is not to the contrary. Landahl held that a lawyer could not justifiably rely on a state court decision of questionable vitality where there was a conflict among the federal circuit courts of appeals. 746 F.2d at 1315. In contrast, the plaintiff in this case, as well as all plaintiffs similarly situated, was justified in believing that he unequivocally had five years from the date on which his cause of action accrued to file his § 1983 claim under Beard v. Robinson.

      Furthermore, Del Costello was clearly foreshadowed by recent Supreme Court cases, and its retroactive application promoted the strong federal policy of rapid disposition of labor controversies. See id. On the other hand, Wilson v. Garcia sharply departed from past Supreme Court precedent, and the remedial policies behind § 1983 actions would be disserved by its retroactive application. See Winston v. Sanders, supra note 3. Thus, Wilson represents far more than a mere clarification of the law. Cf. 746 F.2d at 1315.

      . Furthermore, even if there were such a duty, Floro would be shielded from liability by qualified immunity because his alleged misconduct was nothing more than a discretionary act which did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 818 n. 30, 102 S.Ct. 2727, 2738, 2738 n. 30, 73 L.Ed.2d 396 (1982).

      . In this connection, defendants’ reliance on Altman v. Hurst, 734 F.2d 1240 (7th Cir.), cert. denied, -U.S.-, 105 S.Ct. 385, 83 L.Ed.2d 320 (1984), is misplaced. As the Seventh Circuit made clear, the conduct in Altman concerned a private personnel dispute. Id. at 1244, 1244 n. 10.

      . The court expresses grave doubt whether Moore has stated, or is able to state, a claim under § 1983 against Bozer. It seems untenable that merely photographing Moore’s "good side” could constitute a constitutional violation under the facts of this case. In the absence of any protest by Bozer, however, the court will not take any action at this time.


author: GENE CARTER, District Judge.

text:
    Robert D. POWER, Plaintiff, v. Margaret M. HECKLER, Secretary, United States Department of Health and Human Services, Defendant.
    Civ. No. 84-0331 P.
    United States District Court, D. Maine.
    July 24, 1985.

      Michael A. Bell, Bell & Geores, Lewiston, Me., for plaintiff.
    Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.
   MEMORANDUM AND ORDER

GENE CARTER, District Judge.

This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the final decision of the Secretary of Health and Human Services, which denied Plaintiffs applications for disability insurance benefits and supplemental security income benefits. Plaintiff is an achondroplastic dwarf, approximately 4'7" tall, who also has mental retardation. He applied for disability insurance benefits on February 14,1983, claiming that a period of disability began in April of 1980.

Plaintiffs application was denied administratively and, after hearing, by an Administrative Law Judge. After duly filing a complaint for judicial review in this Court, Plaintiff filed a Motion for Summary Judgment or for Remand on January 30, 1985. The day before her cross-motion and supporting memorandum of law were due, the Secretary filed a Motion for Extension of Time to file those papers. The Court denied the motion. The Secretary nevertheless attempted to file her Motion and Memorandum nine days after the deadline, along with another Motion for Extension of Time. The Motion for Extension of Time will be denied, and the Court will decide the ease without considering the Motion and Memorandum proffered by the Secretary. See Mawhinney v. Heckler, 600 F.Supp. 783, 784-85 (D.Me.1985); Smith v. Heckler, 595 F.Supp. 1105, 1106 (D.Me.1984).

The Administrative Law Judge (AU) conducted two hearings on Plaintiffs application. In the first, he took the testimony of the claimant; Michael Everett, a case worker for the Maine Department of Human Services; Dr. Carlyle Voss, a medical advisor; and Dr. Karl F. Heiser, a vocational expert. Subsequent to the first hearing, the claimant’s attorney filed a vocational assessment and the AU received a report from the Department of Vocational Rehabilitation. Record at 103. A second hearing was called in order to permit a vocational expert, this time Michael C. Williams, to evaluate the additional vocational evidence.

In his decision dated February 28, 1984, the AU found that the claimant has severe achrondoplasia and mental retardation, but does not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1 to 20 C.F.R. Part 404, Subpart P. He found that the claimant has the residual functional capacity to perform work “except for work requiring climbing, lifting more than 20 lbs. at a time, or involving prolonged periods of concentration, among other things.” Record at 24. He found that the claimant could not perform his past relevant work but that he could perform a significant number of jobs existing in the national economy. Id. Therefore, he found the claimant not to be disabled.

In his decision, the AU did not mention the testimony of Dr. Williams. The claimant then requested that the AU reopen and reconsider his decision in light of Dr. Williams’ testimony. Record at 16-17. The AU denied the Motion to Reopen on the ground, among others, that the testimony of Dr. Williams did not differ in any substantial way from that of Dr. Heiser. Record at 11-12.

Plaintiff asserts that the AU made several errors. First, he argues that the AU erred in concluding that the claimant’s impairment did not meet or equal the listings. Specifically, the claimant asserts that the AU “skipped” the third step in the sequential evaluation process by failing to discuss why Plaintiff’s impairments did not meet or equal the listings. It is true that the AU did not discuss the listings in the body of his decision, concluding only in his numbered findings that the claimant’s impairments did not meet or equal the listings. This Court has admonished the Secretary to set forth particularized findings and reasons in connection with decisions made under her regulations. See Blaisdell v. Heckler, Civil No. 84-0125-P (D.Me. March 28, 1985); Holmes v. Heckler, 594 F.Supp. 536, 538 (D.Me.1984) (per Cyr, C.J.); Trafton v. Heckler, 575 F.Supp. 742, 746 (D.Me.1983) (per Cyr, C.J.). In the context of this case, however, the Secretary’s findings are sufficient to permit meaningful judicial review.

The claimant faults the AU for failing to explain why his impairment did not meet or equal listing 12.05(C). The claimant has the burden of proving his disability. 20 C.F.R. § 404.1512; Reyes Robles v. Finch, 409 F.2d 84 (1st Cir.1969). The evidence of record in this case does not support a finding that claimant’s impairment meets or equals 20 C.F.R.App. 1, 12.-05(C), which provides:

IQ of 60 to 69 inclusive (see 12.00 B4) and a physical or other mental impairment imposing additional and significant work-related limitation of function.

The claimant’s lowest IQ score, 70, was above the range set out in listing 12.05(C). Here, there is substantial evidence to demonstrate that the claimant has no significant physical problems apart from his small stature. See record at 232. Besides his IQ, there is evidence that he suffers from reactive depression, record at 235, but no evidence demonstrating that it limits his ability to work. Finally, vocational testing revealed that he had a bad attitude in a work setting. The AU’s finding that this was not sufficient to raise his impairment to the level of listing 12.05(C) was proper.

Plaintiff also contends that the AU failed to adequately consider listing 12.04. The record clearly does not include evidence to support the existence of an impairment meeting or equal to listing 12.04. The AU’s conclusion, therefore, is supported by substantial evidence.

Plaintiff next argues that the AU’s finding that he is presently employable is not supported by substantial evidence. Plaintiff specifically complains that the AU failed to consider the testimony of the second vocational expert, Dr. Williams, who, unlike Dr. Heiser, had the benefit of an extensive Vocational Evaluation Report from Pathways, Inc. See Record at 241, et seq. Dr. Heiser gave his opinion that the claimant was able to perform jobs existing in significant numbers in the national economy. Record at 86; see 20 C.F.R. § 404.-1566. Upon questioning by the AU at the second hearing, Dr. Williams gave a similar opinion. Record at 118. However, upon questioning by the claimant’s attorney, who added to the AU’s hypothetical findings derived from the Pathways, Inc. evaluation, including problems with concentration, attention span, punctuality, and ability to follow instructions, Dr. Williams stated that such a person is not presently employable. Record at 122, 126.

The AU did not consider Dr. Williams’ opinion in his first Decision and in his Order Denying Motion to Reopen, stated that Dr. Williams’ testimony did not differ in any substantial way from that of Dr. Heiser. Clearly, this observation was incorrect, and it suggests that the AU paid little attention to Dr. Williams’ testimony. This was error. The AU was bound to give the testimony of the vocational expert great weight. Dionne v. Heckler, 585 F.Supp. 1055, 1060 (D.Me.1984). Here, the AU relied heavily on the testimony of Dr. Heiser, who testified before the claimant underwent a vocational evaluation at Pathways. He ignored the opinion of the expert who testified after the evaluation became a part of the record. Certainly, the AU is entitled to discount the findings included in the claimant’s hypothetical, and' thus the resulting opinion that the claimant could not work. But the AU should give better indication than he has on this record that he has taken cognizance of the vocational expert’s opinion. See Small v. Califano, 565 F.2d 797, 801 (1st Cir.1977); Dionne, supra, 585 F.Supp. 1060. The Court will remand this case to the Secretary to enable her to give due consideration to all opinions expressed by Dr. Williams and to make pertinent detailed findings.

The claimant has also sought remand for application of Section 5 of the Social Security Disability Benefits Reform Act of 1984, Pub.L. 98-460, 98 Stat. 1801-1802. Section 5 requires the Secretary to revise the criteria for evaluating Mental Disorders in the Listing of Impairments. The revised criteria “shall be designed to realistically evaluate the ability of a mentally impaired individual to engage in substantial gainful activity in a competitive workplace environment.” Section 5 further provides that the criteria shall be applied to certain persons subject to continuing eligibility reviews and prior denials. The claimant here appears to be among those persons who, if denied on the pending application, would be able to reapply and, if eligible under the new criteria, entitled to benefits for the period for which he was denied. Pub.L. 98-460, § 5(c)(3), 98 Stat. 1802. The procedure for obtaining the benefit of this provision is reapplication. Id.; Ferguson v. Heckler, Civil No. 83-0141-B (D.Me. Dec. 18, 1984) (per Cyr, C.J.). Under the circumstances present here, however, the Court will require the Secretary to apply the revised criteria developed pursuant to section 5 of the Reform Act on remand. The record in this case makes it clear that the revisions made pursuant to section 5 could be pivotal in establishing the claimant’s eligibility for benefits. It will neither benefit the applicant nor conserve administrative and judicial resources to require the claimant to begin the application process anew, if his pending application is denied on remand, in order to be considered under the revised criteria.

Accordingly, it is ORDERED that the decision of the Secretary is VACATED and this case be REMANDED to the Secretary for further proceedings consistent with this Opinion.

So ORDERED.


text:
    Kenneth M. JOHNSON, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    No. K84-74 CA.
    United States District Court, W.D. Michigan, S.D.
    July 24, 1985.

      Kevin P. Burch, Chambers, Steiner, Mazur, Ornstein & Amlin, Kalamazoo, Mich., for plaintiff.
    Martin Palus, Asst. U.S. Atty., Grand Rapids, Mich., for defendant.
   OPINION

BENJAMIN F. GIBSON, District Judge.

This is an action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health and Human Services (the Secretary) denying plaintiff's claim for disability insurance benefits.

The final decision of the Secretary is now before the Court for review pursuant to motions for summary judgment filed by both plaintiff and defendant.

Section 205(g) of the Act, supra, limits the Court to a review of the administrative record and provides that if the Secretary’s decision is supported by substantial evidence it shall be conclusive. The Secretary has found that plaintiff is not disabled within the meaning of the Act. The only issue before the Court is whether or not the decision of the Secretary is supported by substantial evidence. Because this Court concludes that it is not so supported, the Secretary’s decision is reversed, and this case shall be remanded for the awarding of benefits.

In determining whether an individual is disabled, the initial burden is on plaintiff to establish that he can no longer engage in his past work. Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir.1978); Garrett v. Finch, 436 F.2d 15, 18 (6th Cir.1970). Once the plaintiff establishes he can no longer do his past work, the burden shifts to the Secretary to establish that plaintiff, in light of his physical condition “can perform other substantial gainful work, and that there are jobs in the national economy which claimant can perform.” Hephner, supra at 362; Montgomery v. Weinberger, 514 F.2d 1211 (6th Cir.1975).

The Sixth Circuit established, based on administrative regulations which became effective February 26, 1979, that claimants must satisfy four criteria as part of their “prima facie case” in order to successfully shift the burden to the Secretary:

The regulations require that an initial determination be made as to whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is found “not disabled.” Second, it is determined if the claimant has a severe impairment — one that significantly limits the ability to perform work-related functions; if not, then on the medical evidence alone the claimant is determined to be not disabled. Third, if a severe impairment is found, the impairment is compared against those listed in Appendix 1, 20 C.F.R. Subpart P, Appendix 1 (1981), to see if, on the medical evidence alone, the claimant can be found to be disabled. Assuming the claimant is not found to be disabled, the fourth step requires inquiry into whether the claimant can perform relevant past work; if so, then the claimant is not disabled.

Kirk v. Secretary, 667 F.2d 524, 528 (6th Cir.1981), cert. denied 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983).

In the present case, the AU determined that plaintiff failed to establish that his impairments are severe. Because the Court is of the opinion that the record does not contain substantial evidence to support this decision, it shall be reversed.

Plaintiff, Mr. Kenneth M. Johnson, was born on March 1,1921 and was 62 years old at the time of the hearing. He has an eighth grade education and worked as a truck driver until February 14, 1983, when he became disabled due to pain in his left knee, diabetes, hypertension, and a cateract in his right eye. It appears from the plaintiffs testimony that he terminated his employment on that date due to a knee injury occasioned while on the job in 1980. (Tr. 38) The AU made no determination as to the exertional requirements of plaintiffs past relevant work, nor of the exertional ability plaintiff retains due to his present impairments. The record does reflect that plaintiff was required to load and unload trucks. (Tr. 23)

Dr. Lindquist treated plaintiff for his knee injury in 1980. In a report dated April 8, 1983, Dr. Lindquist stated that plaintiff had degenerative arthritis in the injured knee. (Tr. 132) This finding is confirmed by Dr. Warren Speers in a report dated March 9, 1983 (Tr. 130) and by Dr. Felipe Regualos, who noted that an x-ray showed “mild degenerative changes” in the knee. (Tr. 135)

The record is replete with clinical documentation of plaintiffs other impairments. Dr. Speers diagnosed plaintiffs diabetes, and notes that plaintiff underwent prostate surgery in 1981. (Tr. 130) He further noted that plaintiff walks with a limp. (Tr. 131) Dr. Lindquist, who treated plaintiff intermittently between 1980 and 1983, also noted plaintiffs “antalgic gait favoring left side.” (Tr. 132) Dr. Regualos stated that plaintiff had a diabetic coma in 1981, that he has diabetes mellitus, essential hypertension, and a cateract. (Tr. 134-135).

Despite these consistent medical findings, the AU concluded that plaintiffs impairments are not severe. Severity is defined by the Secretary as an “impairment or combination of impairments” which “significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The regulations go on to give examples of basic work activities the Secretary will consider when determining severity:

(b) BASIC WORK ACTIVITIES. When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs. Examples of these include—
(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting.
§ 404.1521(b)

If an impairment or combination of impairments is found “not severe,” the Secretary “will not consider your age, education, and work experience” in the disability calculus. § 404.1520(c). On its face, this regulation conflicts with the express language of the statute which sets forth factors mandated by Congress for consideration when passing on disability determinations. This statute provides in relevant part that

an individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. § 423(d)(2)(A) (emphasis added).

The apparent conflict between the statute and the severity regulation has caused several district courts to hold it invalid. Dixon v. Heckler, 589 F.Supp. 1494 (S.D.N.Y.1984) (granting preliminary injunction prohibiting its application to plaintiff class); Glover v. Heckler, 588 F.Supp. 956 (S.D.N.Y.1984) (reversing AU rather than remanding because the record established that had grid been applied, finding of disability would be dictated); Boiano v. Heckler, 586 F.Supp. 732 (S.D.N.Y.1984) (stating that the non-severity regulation did not “carry into effect the will of Congress”).

Other courts have noted the conflict between the statute and the severity regulation, and have restricted its application to claims “so groundless that any analysis of the claimant’s work experience or residual functional capacity would be a waste of time.” McCullough v. Heckler, 583 F.Supp. 934, 937 (N.D.Ill.1984) citing Brady v. Heckler, 724 F.2d 914 (11th Cir.1984). The court in Brady construed the severity regulation as imposing a burden on plaintiff to make a minimal, threshold showing that his condition warrants inquiry into factors other than his impairment itself. Because of the apparent conflict with the legislative intent, that showing should be a de minimis one. The Brady court posed the required showing this way:

An impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience.

724 F.2d at 920.

The severity regulation is a rule of administrative convenience designed to enable the Secretary to “realize the efficiency gains promised by 20 C.F.R. § 404.1520(c) while protecting claimants from a statutorily unwarranted increase in the burden of making a prima facie case of disability.” Hundrieser v. Heckler, 582 F.Supp. 1231, 1243 (N.D.Ill.1984). The courts refusing to apply the regulation have foreclosed the Secretary from realizing the “efficiency gains” accruing to the Secretary’s ability to discontinue the inquiry when it is clear a claimant’s impairment is slight. This Court is of the opinion that a de minimis application of the severity regulation is a preferable rule.

This Court is of the opinion that the plaintiff here has satisfied the de minimis showing under the severity regulation as interpreted by Brady and McCullough. There is uncontradicted medical evidence that plaintiff developed arthritis in his left knee, as well as a limp. He also had hypertension and diabetes. Although the AU need not have considered plaintiff’s age for the purpose of applying the grid, he could have — and should have — considered plaintiff’s age in determining the severity of his impairments. The above noted injury and illnesses will render a 62-year old man somewhat more severely impaired than a 21 year old.

In any event, the Court finds that the substantial evidence in the record does not show that plaintiff has failed to make a showing that his impairments are not severe. Accordingly, the Secretary’s decision is reversed, the plaintiff’s motion for summary judgment is granted, the defendant’s motion is denied, and this matter is remanded for the awarding of benefits.


author: BUA, District Judge.

text:
    Jorge and Marisa GOMEZ, et al., Plaintiffs, v. ILLINOIS STATE BOARD OF EDUCATION, et al., Defendants.
    No. 85 C 3744.
    United States District Court, N.D. Illinois, E.D.
    July 24, 1985.

      Raymond G. Romero, Fernando Colon-Navarro, Mexican American Legal Defense and Educational Fund, Chicago, Ill., Joaquin Avila, Norma Cantu, Mexican American Legal Defense and Educational Fund, San Francisco, Cal., for plaintiffs.
    Neil F. Hartigan, Atty. Gen. of Illinois by Laurel Black Rector, Asst. Atty. Gen., Chicago, Ill., for defendants.
   ORDER

BUA, District Judge.

Before the Court is the defendants’ motion to dismiss the complaint of the purported plaintiff class, pursuant to Fed.R. Civ.P. 12(b)(6), in an equal education opportunity case. For the reasons stated below, the defendants’ motion is granted and the plaintiffs’ complaint is dismissed. The plaintiffs are directed to file an amended complaint naming the correct parties as defendants.

I. FACTS

This is a class action brought by the named plaintiffs on behalf of Spanish-speaking children of limited English proficiency who are enrolled in various local school districts in Illinois. The named plaintiffs are students enrolled in either Iroquois West School District # 10 or Peoria School District # 150. Plaintiffs claim that their school districts have not tested them for English language proficiency nor have they received bilingual instruction or compensatory instruction. In support of this claim, plaintiffs assert that the Illinois State Board of Education and Ted Sanders, the Illinois State Superintendent of Education, have violated Chapter 122, Section 14C-3 of the Illinois Revised Statutes by failing to perform their duties thereunder.

That state statute governs transitional bilingual education in the Illinois state school system. The statute requires school districts to identify students of limited English-speaking ability and classify them according to language, grade, age or achievement level. Any school district with 20 or more students of limited English speaking proficiency must establish a transitional bilingual education program. The Illinois State Board of Education’s responsibility under this statute is to develop certain regulations which must be adhered to by the school districts.

Finally, plaintiffs argue that these alleged violations of state law constitute violations of their federal rights under the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. § 1703(f), Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and regulations promulgated thereunder, 34 C.F.R. § 100.3 et seq., § 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States Constitution. Plaintiffs seek a declaratory judgment that defendants have violated § 1703(f) and seek injunctive relief to remedy the violation. Specifically, they seek a mandatory injunction requiring defendants to provide local school districts with uniform standards for the identification and instruction of limited English-proficient students. They also seek programs for limited English-proficient students in school districts where there are less than 20 such students as well as a means by which parents may contest placement of students in a linguistic remedial program.

II. DISCUSSION

A. The Eleventh Amendment Defense

In support of their motion to dismiss, the defendants argue that, at its heart, plaintiffs’ complaint alleges violations of state law in themselves and as violations of federal law. Further, defendants contend that, since state law violations are at the core of plaintiffs’ action, the relief granted to the plaintiffs would necessarily involve an order requiring the defendants to comply with state law. Therefore, defendants conclude that plaintiffs’ case is barred by the Eleventh Amendment because the relief most likely to be awarded is barred by Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

In Pennhurst, the class of plaintiffs contended that the conditions of confinement at a state institution for care of the mentally retarded violated their federal constitutional and statutory rights as well as the Pennsylvania Mental Health and Mental Retardation Act. The only issue considered by the United States Supreme Court was whether “... the Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law ...” Id. at 906. The Supreme Court first noted that suits against a state or its agencies are barred by the Eleventh Amendment, as is a suit against state officials, when the state is the real party in interest. Id. at 908-909. An exception to this rule is that a suit challenging the constitutionality of a state official’s action or a state statute is not one against the State. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

In Pennhurst, the Supreme Court concluded that “... a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when — as here — the relief sought and ordered has an impact directly on the state itself.” Id. 104 S.Ct. at 917. In its reasoning, the Court found that a federal court’s instructions to state officials on how to conform their conduct to state law constitute too great an intrusion on state sovereignty and therefore conflict “directly with the principles of federalism that underlie the Eleventh Amendment.” Id. at 911. Finally, the Court held that its above holding applies “as well to state-law claims brought into federal court under pendent jurisdiction.” Id. at 919.

Plaintiffs counter that Pennhurst does not apply because, in this case, defendants’ failure to supervise local districts in their identification and placement of limited English-proficient students is itself a violation of federal law. Specifically, plaintiffs complain that the defendants’ failure to make uniform guidelines for identification of limited English-proficient students constitutes a “failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” 20 U.S.C. § 1703(f). Therefore, since defendants’ alleged failure to write guidelines under state law also violates federal law, plaintiffs conclude that an order compelling defendants to comply with state law is really meant to cure their violation of federal law and therefore Pennhurst should not apply to bar such relief.

Plaintiffs’ attempt to distinguish Pennhurst from this ease is unpersuasive. While it is correct that the Supreme Court in Pennhurst was not faced with this argument which links a violation of state law to a violation of federal law, the Court did expressly consider the effect of the Eleventh Amendment on the doctrine of pendent jurisdiction over state law claims. Id. at 917. As noted above, the Court held that the Eleventh Amendment “principle applies as well to state-law claims brought into federal court under pendent jurisdiction.” Id. at 919. This holding persuades this Court that the Supreme Court in Pennhurst meant for state and federal law claims to be dealt with separately in an Eleventh Amendment analysis. Therefore, the Court will treat the plaintiffs’ claims for relief as twofold: one relief for violation of state law and another relief for violation of federal law.

B. Relief Under State Law

As set forth in Pennhurst, the Eleventh Amendment bars an action for relief against state officials based solely on state law where the relief would impact directly on the state. Pennhurst, supra, 104 S.Ct. at 917. In the present case, the plaintiffs seek a mandatory injunction requiring the Illinois State Board of Education and the Illinois State Superintendent of Education to provide local school districts with uniform standards for the identification and instruction of limited English-proficient students. Insofar as this requested relief requires the defendants to comply with the Illinois statute establishing transitional bilingual education programs, Ill.Rev.Stat. Ch. 122, § 14C-3, the Court finds that the relief is barred by Pennhurst and the Eleventh Amendment because the injunction will impact directly on the state and is based solely on state law. Therefore, the plaintiffs’ complaint is dismissed as to those portions based on § 14C-3 and requesting compliance thereunder.

C. Relief Under Federal Law

1. 20 U.S.C. § 1703(f)

Plaintiffs assert that defendants have abdicated their responsibility under 20 U.S.C. § 1703(f) by failing to make guidelines under state law. This assertion is untenable in light of the federal and state statutes. Section 1703(f), as cited above, sets forth a general duty on the part of a state not to discriminate in the area of educational opportunity. Neither § 1703(f) nor any other section of the EEOA specify the type of program which a state should enact in promoting transitional bilingual education. The prohibition in § 1703(f) is against inaction by a state or local school district in remedying language barriers.

Since no specific remedy is set forth in the EEOA for implementing transitional bilingual education, the state is free to set up its own program and delegate to local school districts the primary burden of implementing it. Once a state has passed a statute setting up a transitional bilingual education program and once the state board of education has drawn up and enacted guidelines for the program’s implementation, the burden of implementing the program guidelines shifts to the local school district. This conclusion is especially true for the transitional bilingual education program set up under Illinois law. Ill.Rev. Stat. ch. 122 § 14C-3.

Under Illinois law, the only role specified for the State Board of Education is drafting regulations. Id. The State Board has fulfilled this duty in Title 23 of the Illinois Administrative Code, Subtitle A, Chapter I, Subchapter f, Part 228, entitled Transitional Bilingual Education (1984). These regulations define children of limited English-speaking ability as those children falling within language levels I-IV. § 228.10(e) & (f). § 228.10(1) defines six Levels of Language Fluency.

The administration of a census to determine how many children are of limited English-speaking ability is delegated to the superintendent of each school district. § 228.60(b)(1). The census must be conducted by persons who can speak and understand the necessary languages of the various groups of limited English-speaking children. § 228.60(b)(2). In addition, the local school district shall seek cooperation from local agencies, organizations or community groups if assistance is needed in determining the students’ levels of language fluency. § 228.60(b)(3).

Finally, parents or legal guardians of children who have not been counted in the census as possessing limited English-speaking ability may request placement into a transitional bilingual education program. The school district’s determination upon such request is mandatory and appealable to the Superintendent of the Educational Service Region. See also § 228.80(c) (covering parental protests to placement, transfer, and withdrawal of students in transitional bilingual education programs).

In light of these detailed regulations, it is clear to the Court that the plaintiffs either have never read these regulations promulgated by the State Board of Education or really mean to assert a cause of action against the local school districts in which the named plaintiffs are enrolled. In either event, the appropriate cause of action in this case is against the local school districts and not a statewide remedy, which has doubtful merit, for failure to make appropriate guidelines. The Court finds support for its conclusion that this § 1703(f) action should be brought against the local school districts in United States v. State of Texas, 680 F.2d 356 (5th Cir.1982).

In State of Texas, the Fifth Circuit Court of Appeals interpreted § 1703(f) as giving state and local authorities substantial latitude to select programs and techniques of language remediation suitable to meet their individual problems. The Fifth Circuit then noted that the Texas Act, like the Illinois Act here, gave even greater latitude to the local school districts by setting up certain mínimums in the area of transitional bilingual education programs. See 111. Rev.Stat. ch. 122, § 14C-3. In light of these observations regarding the federal and state statutes, the Fifth Circuit concluded that a statewide remedy was inappropriate.

In support of its conclusion, the Fifth Circuit reasoned:

It follows, then, that whether the effect of a local language program, state-mandated or not, constitutes appropriate action to deal with language barriers faced by the students of a given school district will of necessity be an essentially local question. Either the actual, local program as it operates on actual, local students is an appropriate response to their language problems or it is not. If it is, then section 1703(f) has been complied with as to these students; if not, it has not been. And since the type and level of program to be instituted is in great part left to the individual district, it necessarily follows that one district may be in compliance, while another next door to it may not. We fail to see how such questions as these can be properly resolved in the absence of the school district concerned or how they can be effectively dealt with on a statewide basis.

Id. at 374. Accord. Coates v. Illinois State Bd. of Ed., 419 F.Supp. 25 (N.D.Ill.1976); see contra Idaho Migrant Council v. Board of Education, 647 F.2d 69 (9th Cir.1981).

Since it finds persuasive the result in State of Texas and its interpretation of § 1703(f), the Court finds that the state defendants are not the proper parties in this action brought under § 1703(f). In addition, the Fifth Circuit in State of Texas directed the district court, “in the event that individual school districts are made parties hereafter, to give serious consideration to such motions for change of venue as may result — to the end that, in the absence of some overriding reason to the contrary, local school districts may litigate in their local federal courts.” State of Texas, supra, 680 F.2d at 374. Following the Fifth Circuit’s lead, the Court dismisses the plaintiffs’ complaint and directs the plaintiffs to file a new complaint under § 1703(f) against the local school officials in the federal district court where the school districts are located.

2. The Fourteenth Amendment, 43 U.S.C. § 1983, and Title VI, 43 U.S.C. § 2000d.

After the Supreme Court case of University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), it now appears that Title VI, like the Equal Protection Clause of the Fourteenth Amendment, is violated only by conduct animated by an intent to discriminate and not by conduct which, although benignly motivated, has a differential impact on persons of different races. Castaneda v. Pickard, supra, 648 F.2d at 1007. Thus, while Bakke did not expressly overrule Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), it renders that decision obsolete, insofar as it found a violation of Title VI merely on proof of discriminatory impact without any showing of discriminatory intent, as required by Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) and subsequent cases. United States v. State of Texas, 506 F.Supp. 405, 431 (E.D.Tex.1981), rev’d on other grounds, 680 F.2d 356 (5th Cir.1982). If Title VI is coextensive with the Equal Protection Clause, Bakke, supra, 438 U.S. at 287, 98 S.Ct. at 2746, purposeful discrimination must be shown to make out a statutory violation. State of Texas, supra, 506 F.Supp. at 431. This rule applies to § 1983 claims where the underlying cause of action is for racial discrimination as violative of the Equal Protection Clause. 6 Fed.Proc.L.Ed. § 11:179, p. 196.

In the present case, the plaintiffs allege neither purposeful discrimination nor past de jure discrimination in the defendants’ attempts to enact transitional bilingual education programs. Therefore, the plaintiffs’ complaint, based on Title VI, the Equal Protection Clause and § 1983, is dismissed because it does not allege purposeful discrimination.

III. CONCLUSION

For the reasons stated above, defendants’ motion to dismiss is granted as to plaintiffs’ state law claims and federal law claims, based on the Fourteenth Amendment, Title VI, 42 U.S.C. § 2000d and 42 U.S.C. § 1983. Plaintiffs’ complaint based on 20 U.S.C. § 1703(f) is dismissed as to the state defendants and plaintiffs are directed to file a new complaint naming local school officials as defendants in the federal district court where the school districts are located.

IT IS SO ORDERED.

      . For the convenience of the parties, the Court notes that the Iroquois West School District # 10, Onarga, Illinois, is located in the Danville Division of the U.S. District Court for the Central District of Illinois. The Peoria School District # 150, Peoria, Illinois, is located in the Peoria Division of the U.S. District Court for the Central District of Illinois.