author: BUA, District Judge.

text:
    Edna JOHNSON and Jerome Montgomery, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. 83 C 4110.
    United States District Court, N.D. Illinois, E.D.
    March 15, 1985.

      Joseph A. Antolin, Shelley Davis, Robert E. Lehrer, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiffs.
    Gregory C. Jones, Acting U.S. Atty. by Linda Wawzenski, Asst. U.S. Atty., Chicago, Ill., Randolph W. Gaines, A. George Lowe, Mary Gludt, Disability Litigation Branch, Social Sec. Div., Dept, of Health & Human Services, Baltimore, Md., for defendant.
   ORDER

BUA, District Judge.

Before the Court is defendant’s motion for a stay of judgment of this Court’s order dated September 19,1984, pursuant to Rule 62 of the Federal Rules of Civil Procedure, pending an appeal to the Seventh Circuit Court of Appeals. Also before the Court is plaintiffs’ motion for a finding of civil contempt and sanctions and for further relief pursuant to 28 U.S.C. § 2202. For the reasons stated herein, plaintiffs’ motion for a finding of civil contempt and sanctions is denied. Plaintiffs’ motion for further relief is granted insofar as the Court clarifies the injunctive relief ordered in its September 19, 1984 order. Finally, defendant’s motion for a stay of the injunctive relief pending appeal is denied.

I. FACTS

On September 19, 1984, this Court entered an order granting summary judgment in favor of the plaintiff class and enjoining the defendant Secretary of Health and Human Services (“the Secretary”) from applying the severity regulations and rulings insofar as they mandate (1) consideration at the second stage of the sequential evaluation process of a claimant’s ability to do “basic work activities” as opposed to “previous work,” and (2) consideration of the combined effects of unrelated impairments only if they are severe and expected to last 12 months. Johnson v. Heckler, 593 F.Supp. 375, 381-82 (N.D.Ill.1984). In addition, the order provided preliminary and permanent injunctive relief requiring the Secretary to:

(1) hold new disability hearings for class members;
(2) reinstate disability benefits under Title II and/or XVI of the Social Security Act pending hearing determination by the Social Security Administration (SSA) for class members whose benefits had been terminated as a result of the policies described above; and
(3) grant retroactive benefits to class members who, after a new hearing, are found to be disabled.

On October 1, 1984, pursuant to Fed.R. Civ.P. 59, the Secretary timely filed a Motion to Alter or Amend judgment. On October 12,1984, pursuant to Fed.R.Civ.P. 62, the Secretary filed a Motion to Stay Judgment Pending Disposition of the Motion to Alter or Amend Judgment. In the interim, on October 10, 1984, the Social Security Administration (SSA) issued an instruction by teletype to all SSA components to “immediately stop processing denials/cessation on claims for residents of Illinois based on a finding of ‘nonsevere impairment’ without consideration of vocational factors and residual functional capacity.” Emergency Instruction IT-239-89 (October 10, 1984). The October 10 teletype further instructed “all components within the State of Illinois ... [to] immediately stop issuing determinations/decisions on cases that would be denied/ceased on the basis of a ‘nonsevere’ impairment(s),” and to hold such cases pending further instructions.

On December 17, 1984, this Court entered an order denying defendant’s motion to alter or amend the September 19, 1984 order. On the same date, the Court entered an order denying without prejudice the plaintiff class’ motion for further relief and invited it to refile the motion if the Secretary did not comply with the September 19,1984 order after December 17,1984. A notice of appeal from the December 17, 1984 denial of defendant’s motion to alter or amend was filed on February 15, 1985.

II. DISCUSSION

The issue presented is whether the Court should grant a stay of its order imposing a permanent injunction on the Secretary and the SSA to refrain from applying the incorrect standard in determining whether a severe impairment exists, as well as the other injunctive relief ordered. Johnson v. Heckler, supra, 593 F.Supp. at 381-82. Rule 62(c) of the Federal Rules of Civil Procedure provides:

When an appeal is taken from an interlocutory or final judgment granting ... an injunction, the court, in its discretion may suspend [or] modify ... an injunction during the pendency of the appeal____

Once an injunction has been granted, the party seeking the stay must show (1) that he is likely to prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties would not be substantially harmed by the stay, and (4) that a stay would be in the public interest. Decker v. U.S. Dept. of Labor, 485 F.Supp. 837, 844 (D.C.Wis.), aff'd and remanded, 661 F.2d 598 (7th Cir.1980); see also Adams v. Walker, 488 F.2d 1064, 1066 (7th Cir.1973); Collin v. O’Malley, 452 F.Supp. 577 (N.D.Ill.1978). In short, the Court must consider the relative hardships to the parties arising out of the relief sought, in light of the probable outcome of the appeal. Indianapolis Colts v. Mayor & City Council of Baltimore, 733 F.2d 484, 486 (7th Cir.1984).

1. Likelihood of Success on Appeal

For the most part, defendant Secretary has restated her arguments in opposition to the September 19, 1984 order which she previously presented in her motion to alter or amend. The Secretary reiterates her three grounds on which she is likely to prevail on appeal and attempts to bolster them with new cases and recent legislation. Plaintiff class argues that the Secretary’s repetition of arguments from her previously-denied motion to alter or amend underscores the weakness of her position and the unlikelihood of her prevailing on appeal.

The first ground set forth by the Secretary is the jurisdictional bar of the claimant’s failure to exhaust his administrative remedies. In its order dated December 17, 1984, this Court recognized this requirement and the circumstances under which it could find a waiver of the exhaustion of administrative remedies. Once again, as she did in her motion to alter or amend, the Secretary asserts that her reading of Heckler v. Ringer, — U.S. -, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) is the proper one and therefore that she will prevail on this issue on appeal.

The Court rejects the Secretary’s broad interpretation of Ringer in favor of the narrow interpretation contained in its order dated December 17, 1984. Johnson v. Heckler, No. 83 C 4110, slip op. at 8 (N.D.Ill. December 17, 1984). The Court carefully analyzed the language of Ringer and applied the “inextricably intertwined” standard set forth therein to determine whether this case was a proper one for waiver of exhaustion of administrative remedies. Pursuant to Mathews v. Eldridge, 424 U.S. 319, 328-30, 96 S.Ct. 893, 899-900, 47 L.Ed.2d 18 (1976), the Court held the waiver of complete administrative exhaustion was proper because plaintiff class’ legal claims are collateral to a claim for benefits and the class interest in prompt judicial review is so great that deference to the Secretary’s judgment is inappropriate.

In holding that the claims of plaintiff class are collateral to a claim for benefits, the Court followed Justice Rehnquist’s majority opinion and applied his test for “inextricably intertwined” claims, which would not be collateral to a claim for benefits. In support of its holding, the Court reasoned:

... The Court’s narrow interpretation of Ringer is reinforced by Justice Rehnquist’s reference to “only essentially ministerial details” remaining after the relief sought if it were granted. Id. [104 S.Ct.] at 2022.
In the present case, notwithstanding the plaintiffs’ attempt to invalidate the Secretary’s current policy, the Court finds that more than “ministerial details” remain before members of the plaintiff class will receive benefits. The Court’s order which invalidated two of the Secretary’s regulations required her to hold new disability hearings in order to apply the correct standard for disability as defined by the Court. Johnson v. Heckler, 593 F.Supp. 375, 381-82 (N.D.Ill.1984). Since some members of the plaintiff class may not be awarded disability benefits after the new hearings, an award of benefits is by no means automatic or ministerial. Johnson v. Heckler, supra, 100 F.R.D. [70] at 74 [ (1983) ]. Therefore, the Court concludes that plaintiffs’ claims are collateral to claims for benefits. Id.

Johnson v. Heckler, supra, slip op. at 8.

The Secretary cites no new authority to persuade the court to accept her broad interpretation of Ringer. However, this Court has found a recent case from the Eighth Circuit Court of Appeals to support its narrow interpretation of Ringer. Polaski v. Heckler, 751 F.2d 943 (8th Cir.1984). Polaski is a class action challenging the Secretary’s nonacquiescence in Eighth Circuit decisions with respect to the proper standard for evaluating pain and other subjective complaints, and with respect to the proper standard for terminating disability benefits. The district court enjoined the Secretary from denying or terminating disability benefits unless she followed the Eighth Circuit decisions regarding those standards. The district court also provided for reconsideration of the claims of persons within the class under the designated standards. Id. at 944-45.

In holding that waiver of complete administrative exhaustion was proper, the Polaski court said:

Finally, the plaintiffs’ claims are admittedly not “wholly collateral” to their claims for benefits, as was true in Eldridge. But the focus of their relief as a class — the Secretary’s compliance with our case law and the 1984 Act — is substantially collateral tq the issue of whether they are in fact disabled and entitled to benefits. See City of New York v. Heckler, 742 F.2d [729] at 736-37 [ (1984) ]; Mental Health Association of Minnesota v. Heckler, 720 F.2d [965] at 971 [(1983)].

Id. at 953.

The reasoning in Polaski parallels this Court’s reasoning in its order dated December 17, 1984, and its order entered certifying the plaintiff class. See Johnson v. Heckler, 100 F.R.D. 70, 74 (N.D.Ill.1983). Therefore, the Court finds that the Secretary is not likely to prevail on appeal on the issue of exhaustion of administrative remedies.

On the second ground, the Secretary asserts that the 60-day provision of 42 U.S.C. § 405(g) is an absolute jurisdictional time bar to claimants who received a final decision from the Secretary and did not seek judicial review more than 60 days prior to the filing of this class action. Once again, the Secretary presents no new arguments or authority to support her contention that the 60-day provision is not waivable. Her conclusion rests on statements made in Supreme Court opinions (not heard by the full Court) involving Justice Rehnquist’s entering of a stay in Heckler v. Lopez, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431 (1983) (Rehnquist, Circuit Justice), motion to vacate stay denied, — U.S. -, 104 S.Ct. 221, 78 L.Ed.2d 217 (1983), partial stay pending cert. granted, — U.S. -, 104 S.Ct. 2164, 80 L.Ed.2d 548 (1984), vacated and remanded, 105 S.Ct. 583-84 (1984). The Secretary also relies upon an opinion by Justice Stevens, joined by Justice Black-mun, dissenting in part from the denial of an emergency application to vacate the stay entered by Justice Rehnquist. 104 S.Ct. at 222.

In its order dated December 17, 1984, this Court rejected the Secretary’s argument that the 60-day provision is jurisdictional and instead followed the majority view that the 60-day provision is a statute of limitations, which is waived if not asserted as an affirmative defense. Johnson v. Heckler, supra, slip op. at 4; see also Mathews v. Eldridge, 424 U.S. 319, 328 n. 9, 96 S.Ct. 893, 899 n. 9, 47 L.Ed.2d 18; Weinberger v. Salfi, 422 U.S. 749, 763-64, 95 S.Ct. 2457, 2465-66, 45 L.Ed.2d 522 (1975). The Court now notes that the Secretary raised the 60-day provision for the first time in her motion to alter or amend the September 19, 1984 order. The Secretary has not attempted to refute the argument and conclusion in City of New York v. Heckler, 742 F.2d 729 (2d Cir.1984). In City of New York, the Second Circuit Court of Appeals specifically addressed the problem of resolving the opinions of Justices Rehnquist and Stevens in Heckler v. Lopez, supra, with the Supreme Court’s pronouncements in Mathews v. Eldridge, supra, and Weinberger v. Salfi, supra. The Second Circuit concluded: “In the absence of an authoritative ruling by the Supreme Court to the contrary, we continue to believe that the 60-day requirement is not jurisdictional,” City of New York v. Heckler, supra, 742 F.2d at 738. Since it continues to be persuaded by the Second Circuit’s resolution of this issue, the Court finds that the Secretary is not likely to prevail on appeal on the issue of the 60-day provision.

On the third ground, the Secretary asserts that passage of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794, explicitly endorses her sequential evaluation process and the concept of severity. In addition, she argues that case law since the Act has construed the severity regulation as valid. The plaintiff class argues that the case law since the Act has narrowly construed the severity regulation, the second step of the sequential evaluation, as a de minimis threshold test, which is exactly the extent of this Court’s order dated September 19, 1984.

The strength of the Secretary’s argument lies in her unnecessarily broad reading of the Court’s September 19, 1984 order. In that order, the Court held the second step invalid insofar as it required a claimant to prove an inability to perform “basic work activities” as opposed to “previous work” as called for in the statute. Johnson v. Heckler, supra, 593 F.Supp. at 380, 381. The Court expressly rejected plaintiff class’ argument that vocational factors must be considered at the second step, id. at 379, contrary to the Secretary’s interpretation that this Court requires consideration of vocational factors at the second step. Emergency Instruction IT-239-89, page 3 (October 10, 1984). In fact, the Secretary’s more recent instruction reflects the proper interpretation on this Court’s order. Her instruction issued on January 23, 1985 refers to “ability to perform past relevant work.” Emergency Instruction IT-23.t25 (January 23, 1985). .

The case law which reads the severity regulation as a de minimis threshold test is entirely consistent with this Court’s order. The only reason that the Court held the severity regulation invalid as applied and as written is the nature of the relief required in this class action, as opposed to individual claimant cases (the de minimis cases). In addition, a narrow interpretation of the severity regulation as a de minimis test would not be as forceful a signal or as binding a precedent on the SSA when it holds hearings to apply to correct standard of severity. Id. at 381. Therefore, since it finds no authority cited by the Secretary to be inconsistent with its September 19, 1984 order, the Court finds that the Secretary is not likely to prevail on appeal on the issue of the validity of the severity regulation as applied and as written.

2. Balance of Hardships and Public Interest

The Secretary argues that the relief ordered will not only impose a substantial cost on the general fisc and Social Security Trust Fund but also substantially divert scarce resources now being devoted to attempting to administer the SSA. Irreparable harm to the public fisc will result because the cost of effectuating the relief ordered will not be recoverable once it is implemented on behalf of the class as it is now defined. In, addition, the payment of benefits to class members pursuant to the reopening and readjudication of claims under the standards ordered by the Court will not be recoverable if the class is subsequently limited upon review by the Court of Appeals. The Secretary also argues that the harm to the plaintiffs is not irreparable because any member entitled to benefits will be recompensed with full back benefits for any period in which he or she were later found to be disabled, as well as for any period during which a stay may operate.

The plaintiff class argues that the harm to plaintiffs is clearly irreparable because, for some class members, Social Security disability benefits are necessary for food, shelter, and medical treatment. Deprivation of or delay in receiving disability benefits can cause medical setbacks, hospitalizations, and even death. The plaintiff class concludes that no later lump sum payment can redress these forms of deprivation. In addition, the plaintiff class challenges the amount of harm which the Secretary claims will result from the relief ordered. Finally, plaintiff class concludes that the public interest lies in a swift remedy to the Secretary’s noncompliance with the proper legal standards.

If it has a poor chance of prevailing on appeal, the party seeking a stay must show that it would be hurt substantially more by the injunction than the other party would be hurt by a stay of the injunction pending appeal. Indianapolis Colts v. Mayor & City Council of Baltimore, supra, 733 F.2d at 486. Like other courts which have considered this issue, this Court must find that the balance of hardships strongly favors the plaintiff class. Holden v. Heckler, 584 F.Supp. 463, 492 (N.D.Ohio 1984). In Holden, the court reached the same conclusion in similar circumstances and reasoned as follows:

The severe harm suffered by the plaintiff class ... encompassed economic hardship, physical and emotional suffering, and perhaps even death. Protection of the integrity of the public fisc is important____ But budgetary factors are not more important than protecting the rights to which the class members are entitled____

Id.

In addition, where the Secretary’s possible injury arises out of her own regulations and conduct, she should not be granted a stay to minimize any potential harm. Mandel v. U.S. Dept. of Health, Ed. & Welfare, 417 F.Supp. 57, 59 (D.Md.1976). The Court also notes that the use of denial access codes should facilitate the location of class members and therefore the Secretary’s alleged costs for locating the class may be exaggerated. Smith v. Heckler, No. S-83-1609, slip op. at 8 (E.D.Cal. January 17, 1985).

Finally, the Secretary argues that potential damage to the public fisc, which represents harm to the government’s interest, corresponds to harm to the public interest. In other words, the Secretary argues that a cautious approach in enacting the relief ordered, in the form of a stay, is in the public interest. The Court disagrees with the Secretary’s conclusion for two reasons. First, it is difficult to fathom any public interest in the Secretary’s holding of claims to be adjudicated under a standard, which the Court has assessed twice before and here for a third time as being improperly written and applied. Since the public obviously includes future claimants for disability benefits, the Court concludes that it is not in . the public interest to stay adjudication of claims under the proper standard. Second, the public interest requires that the Secretary recognize and apply the correct rule of law. Holden v. Heckler, supra, 584 F.Supp. at 493. Therefore, the Court finds that the public interest would not be served by a stay pending appeal.

III. CLARIFICATION OF INJUNCTIVE RELIEF

In light of the Secretary’s Emergency Instruction IT-23.t25 (January 23,1985), the Court does not find sufficient grounds for holding the Secretary in civil contempt and therefore the motion of the plaintiff class for a civil contempt finding is denied. However, the Court grants the motion of the plaintiff class for further relief under 28 U.S.C. § 2202 insofar as it clarifies the relief contained in its September 19, 1984 order. Furthermore, it is apparent to the Court that detailed instructions on how the defendant should comply with this Court’s September 19, 1984 order are warranted. The further relief granted is as follows:

IT IS HEREBY ORDERED that defendant, her agents and employees:

1. Shall immediately commence identification of all class members for whom preliminary relief has been awarded, i.e. class members whose claims were filed or pending as of February 26, 1979, the date on which the challenged regulations became effective, or thereafter. Defendants shall complete identification of those class members whose benefits were denied at the initial or reconsideration levels of review within thirty days of the date of this order. Defendant shall complete identification of the remaining members of the class awarded relief within seventy-five days of the date of this order. Nothing in this paragraph or the paragraphs which follow shall be construed as requiring the readjudication of individuals who have received an administrative determination or decision after February 26, 1979, which was conducted in accordance with this Court’s previous order; and

2. Are directed to redetermine (reopening if necessary) without regard to the enjoined regulations and rulings the applications or claims of class members who received unfavorable administrative deci-' sions on or after February 26, 1979. Such redeterminations are to be made in the manner (and subject to the options) described in sections (a) through (d) below. No class member shall be excluded from the class because they have commenced court proceedings.

(a) With respect to class members whose applications for disability benefits have been denied at the initial administrative stage or on reconsideration and who have not requested review by an administrative law judge, whether or not the time for appealing such denial has now passed.
(i) Defendant shall forward the class member’s case file to the Disability Determination Services (DDS) for a new initial determination within three days of receipt of the claims folder by the District Office with jurisdiction over the claim. Defendant shall make best efforts to deliver to the District Office 50% of the claims files within two weeks, 65% of the claims files within three weeks and 80% of the claims files within thirty days after the class member responds to notification by the Secretary. Defendant shall begin reconstructing the files of all class members whose claims files are not received by the appropriate District Office within four months after the class member responds to notification.
(ii) Defendant shall make all good faith efforts to complete the sequential evaluation of disability within four weeks of the date a class member’s case file is received by the DDS, unless the class member submits new medical evidence, requests a full redevelopment of evidence and reevaluation of disability, or defendant determines that full redevelopment is required; provided that, in the event the DDS receives more than three thousand cases in any one week, those cases in excess of three thousand shall be considered, for purposes of this subparagraph, as received in the following week. Nothing in this order shall preclude defendant from employing the quality assurance review procedures set forth in 42 U.S.C. 421(c)(3) in each individual class member’s case to the extent defendant deems appropriate.
(b) In conducting the redetermination of those applications or claims in which a request for a hearing was or is pending, defendant shall conduct a hearing before an administrative law judge unless a determination of entitlement can be made on the basis of the record. Such hearings shall be scheduled within thirty days of the date the Secretary identifies the class member, or determines that a person who has presented him/herself as a potential class member is, in fact, a class member. Defendant shall make all good faith efforts to hold hearings within seventy-five days of the date of that identification or determination.
(c) Class members whose hearings have already been held, whether or not the time for appealing the decision has not passed, shall have the option of having a rehearing of proceeding with Appeals Council review, unless a determination of entitlement can be made on the basis of the record. Such rehearing shall be scheduled within thirty days of the date the Secretary identified the class member. Defendant shall make all good faith efforts to hold hearings within seventy-five days of the date of identification or determination of class membership for class members with cases pending before the Appeals Council. Nothing in this provision should be construed to require that hearings be held in cases that were previously adjudicated in accordance with the injunctive relief as ordered by the court.
(d) Class members who received unfavorable Appeals Council decisions, whether or not the time for requesting judicial review has now lapsed, shall have the option of an Appeals Council review conducted in accordance with Johnson criteria. If such review is requested, such review shall be undertaken within thirty days from the date it is requested.
(e) Class members who have actions pending in federal court may elect to have their cases remanded to the Secretary for a reevaluation. If such an election is made, the Secretary shall move the Court for or otherwise agree to a remand of the case. For class members who have had cases remanded from Federal Court, defendant shall make all good faith efforts to hold hearings within seventy-five days of the date that defendant receives a copy of the remand order or within eighty-five days of the date the remand order is entered, whichever is earlier; and

3. Shall immediately issue instructions to Social Security Offices in the State of Illinois, to the Office of Hearings and Appeals, to the Appeals Council, and to the State Disability Determination Services requiring compliance with paragraph (1).

4. Shall, within one week of entry of this order, issue instructions for compliance with this order including procedures to be used in identifying class members, for reevaluating initial claims of plaintiff class members who have been denied at the initial administrative stage or on reconsideration; and

5. Shall immediately provide plaintiffs’ attorneys with copies of all memoranda, notices, instructions, directives and like documents issued to effect compliance with this order as those documents are issued; and

6. Shall report to plaintiffs’ counsel every four weeks with:

(a) a list of the names and social security numbers of class members who have been identified; and
(b) the number of class members identified; and
(c) the number of cases ordered forwarded to DDS’s and
(d) the number of cases that have been scheduled for hearings, and the number of hearings that have been conducted; and
(e) the number of redeterminations of applications that result in allowances, the number that result in denials, and the number of redeterminations of termination cases that result in allowances and the number that result in terminations; and

7. The Secretary may petition the Court at any time for relief from any one or more of the provisions of paragraph 6 above. Such relief shall be granted upon a showing made by the Secretary and a determination of the Court that the implementation of this order is proceeding smoothly and that the information called for in the particular provision or provisions from which the Secretary seeks relief is no longer needed or upon a showing and a determination of the Court that such relief is otherwise appropriate; and

8. Nothing in this order shall be construed as precluding members of the plaintiff class from obtaining greater relief on alternative grounds. Class members shall retain all rights to administrative and judicial review of decisions made as a consequence of this order. Nothing in this order shall be construed as precluding class members who choose to proceed with their individual court cases from seeking preliminary relief in those cases.


source: Caselaw Access Project

author: JOHN P. MOORE, District Judge.

license: Public Domain

text:
    Stephen L. REIGHLEY, Individually and as Personal Representative of the Estate of Sally J. Reighley, and on Behalf of Matthew Reighley and Whitney Reighley, Minors, Plaintiff, v. INTERNATIONAL PLAYTEX, INC., a Delaware corporation, Defendant.
    Civ. A. No. 83-JM-1235.
    United States District Court, D. Colorado.
    March 18, 1985.

      John A. Purvis and Heather Ryan, Hutchinson, Black, Hill, Buchanan & Cook, Boulder, Colo., for plaintiff.
    Raymond J. Connell and Terry Christopher, Hall & Evans, Denver, Colo., Grace M. Healy, Angelo G. Savino and Glenn J. Pogust, Olwine, Connelly, Chase, O’Donnell & Weyher, New York City, for defendant.
   ORDER

JOHN P. MOORE, District Judge.

This is a “toxic shock” case in which plaintiff, Stephen L. Reighley, sues individually and on behalf of his two minor children, Matthew and Whitney, for the injuries which resulted in the death of Sally Reighley, plaintiff’s wife. Defendant, International Playtex, Inc., seeks partial summary judgment to dismiss the claims of the minor children from the suit on the grounds that: (1) Colo.Rev.Stat. § 13-21-201 (1973) vests the sole right to bring a wrongful death action in the surviving spouse; (2) only the personal representative of the deceased may bring a survival claim pursuant to Colo.Rev.Stat. § 13-20-101; and (3) minor children have no independent cause of action for the loss of consortium of a parent.

Jurisdiction is founded on 28 U.S.C. § 1332. The issues have been fully briefed and will be addressed seriatum.

Section 13-21-201 of the Colorado Revised Statutes (1973) codifies both an action for wrongful death and the scheme within which a claimant may seek redress. As provided in part, damages for wrongful death may be sued for and recovered:

(a) By the husband or wife of the deceased; or
(b) If there is no husband or wife, or she fails to sue within one year after such death, then by the heir or heirs of the deceased.

The statute gives standing only to those individuals specifically designated, Kling v. Phayer, 130 Colo. 158, 274 P.2d 97 (1954), and vests the primary, exclusive right in the surviving spouse unless suit is not brought within the year after death. Peck v. Taylor, 38 Colo.App. 90, 554 P.2d 698 (1976); Clint v. Stolworthy, 144 Colo. 597, 357 P.2d 649 (1960).

Defendant contends that the children’s claim must be dismissed for lack of standing to bring an independent suit for the wrongful death of their mother. The plaintiff does not dispute the surviving spouse’s exclusive right to bring an action for wrongful death within the first year but maintains that because the children have a proprietary interest in the judgment, their inclusion in the pleading is merely notification that suit is brought on their behalf.

Colo.Rev.Stat. § 13-21-201(2) provides in part:

If the action under this section is brought by the husband or wife of the deceased, the judgment obtained in said action shall be owned by such persons as are heirs at law of the deceased under the statutes of descent and distribution, and shall be divided by such heirs at law ... according to said statute of descent and distribution.

In Peck v. Taylor, 38 Colo.App. 90, 554 P.2d 698 (1976), a wrongful death action by a surviving spouse and daughter, the Colorado Court of Appeals stated: “since the purpose of the statute is to compensate those who sustain pecuniary injury by the loss of the life of a spouse or parent, retention here of both husband and daughter as parties plaintiff is proper.” Id. 554 P.2d at 699.

Plaintiff, Stephen Reighley, has sued individually. Thus, in the light of Peck v. Taylor, the addition of the children as parties would appear to offend neither the statutory scheme or precedent. This is particularly true since the children have a statutory right to share in any judgment recovered.

In contrast, plaintiffs’ third and fourth claims for relief (outrageous conduct and negligent infliction of emotional distress respectively), are survival claims authorized pursuant to Colo.Rev.Stat. § 13-20-101 (1973), (amended L. 75, p. 587, § 4). Because any recovery under a survival action inures to the estate and is independent of the limits of a wrongful death action, Hernandez v. United States, 383 F.Supp. 168, 173 (D.Colo.1974) only the personal representative of the decedent may bring such a suit. Espinoza v. O’Dell, 633 P.2d 455, 466 (Colo.1981). Consequently, Stephen Reighley as personal representative of Sally Reighley’s estate is the sole proper plaintiff, and the children have no standing to assert these claims.

In seeking dismissal of the children’s claim for loss of consortium, defendant raises an issue of first impression in this jurisdiction. Neither party initially requested certification to the Colorado Supreme Court pursuant to Colorado Appellate Rule 21, nor expressed objection to my resolution of the question. Since the use of certification rests in the sound discretion of the federal court, Lehman Brothers v. Schein, 416 U.S. 386, 389, 94 S.Ct. 1741, 1743, 40 L.Ed.2d 215 (1974), I will address the issue to avoid further delay and to preserve the present discovery momentum.

In so doing, I am mindful that where no controlling Colorado law has either been found or presented, it is the duty of the federal court to attempt to construe the law of the state of Colorado in the manner in which the state’s Supreme Court would, if faced with the same facts and issue. City of Aurora, Colorado v. Bechtel Corp., 599 F.2d 382 (10th Cir.1979); Burgert v. Tietjens, 499 F.2d 1 (10th Cir.1974) (citations omitted). In examination of the question the decisions of other courts, state and federal, must be considered along with the general weight and trend of authority. In re Birdseye, 548 F.2d 321 (10th Cir.1977).

The precise issue presented is whether a minor child may maintain an independent cause of action against a tortfeasor for the loss of society and companionship of a parent. While the term “loss of consortium” has been attached to the children’s claim, the broader term, “loss of society and companionship,” is equally appropriate. Use of the latter term avoids the narrower construction connoting this right derives primarily from the sexual relationship incident to marriage. Indeed, loss of consortium is “a useful though ambiguous term having a rather old-fashioned ring today.” H. Clark, Domestic Relations § 10.1 (1968). While companionship may include sexual relations [See, e.g. Prosser, Torts § 125 at 889 (4th ed. 1971) as cited in CJI-Civ.2d 6:7 (1980)], courts have continued to regard loss of consortium to embrace all of those values — tangible and intangible — inherent in the family relationship. In his treatise, Clark (suyra.) asserts that the term loss of consortium is equally appropriate in reference to the parent-child relationship to summarize “the multitude of rights and duties binding parents to their children and vice versa.” Clark at § 10.1 (1968).

Thus, in the context of the parent-child relationship, the term consortium encompasses a complex of rights — care, comfort, guidance, society, companionship — which is imbued from the earliest stages of bonding infant to parent. Indeed, the family unit has been recognized by the Supreme Court to bear constitutionally protected aspects. See, e.g. Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). The Tenth Circuit has recognized certain family interests as liberty interests predating both the federal Constitution and state laws. Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981).

In addition to these constitutional protections, Colorado tort law has evolved by legislation and judicial decision to impose duties and liabilities on individual conduct interfering with the family relationship. Only recently, however, has a recovery for loss of consortium, historically rooted in the doctrine of yaterfamilias, been made available to a wife as well as a husband. Colo.Rev.Stat. § 14-2-209 (1973); Crouch v. West, 29 Colo.App. 72, 477 P.2d 805 (1970). A parent’s interest to be free from tortious conduct harming his spouse or child is equally that of the child who looks to his parents for care, security, nurture and guidance. If, indeed, there is a right or interest in the family relationship to be protected for a husband and wife, that right must be no less sanctioned by the courts for the children of that relationship.

Contrary to the defendant’s contention that the courts have repeatedly denied a child’s independent cause of action for loss of consortium, there is a nascent but growing trend to recognize and expand this cause of action. In fact, the only present controversy appears to surround the issue of whether the cause of action may also be allowed when the parent is seriously injured by the negligence of another. Several jurisdictions have held that it would be anomalous to sustain a recovery when the parent dies but to deny one when the parent lies comatose or is seriously injured. See, e.g., Rosen v. Zorzos, 449 So.2d 359 (Fla.App. 5 Dist.1984); Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190 (1984); Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co., 335 N.W.2d 148 (Iowa 1983) (reversing Weitl because Iowa Code § 613.15 already included parental consortium damages but upholding its rationale); Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980).

Those jurisdictions that have rejected a child’s claims for loss of consortium have done so for a variety of reasons. In Salin v. Kloempken, 322 N.W.2d 736 (Minn.1982), the court was persuaded that increased insurance costs, public policy and the burden on litigation and settlements were paramount to recognizing a child’s claim. The Oregon Supreme Court deferred to the legislature. Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318 (1982). While the court in Mueller v. Hellrung Construction Co., 107 Ill.App.3d 337, 63 Ill.Dec. 140, 437 N.E.2d 789 (1982), denied the child’s independent claim for loss of consortium when his parent was injured, and speculated on the potential for burgeoning insurance, court, and social costs, it recognized implicitly that were the parent to die, such an action would lie. On this basis, the federal court for the Central District of Illinois later expressly concluded that “Illinois does indeed recognize a cause of action on behalf of a child for the loss of a parent’s society when the parent dies due to the wrongful act of another.” Estate of Davis v. Hazen, 582 F.Supp. 938 (C.D.Ill.1983).

In Borer v. American Airlines, Inc., 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858 (1977), the court rejected the child’s claim for loss of parental consortium when the mother was injured. Though sympathetic to the child’s need for love, affection, society, and guidance from a parent, the court concluded that monetary compensation would inadequately alleviate the tragedy; that damages would be difficult to measure; and that extended and disproportionate liability might result. In his dissent, Justice Mosk reminded, “[T]he rights of a proposed new class of tort plaintiff should be forthrightly judged on their own merits, rather than by indulging in gloomy speculation on where it will all end.” Id. 138 Cal.Rptr. at 314, 563 P.2d at 870.

I am not unmindful of the vital role the legislature must play in fashioning tort law, but I will not abdicate my responsibility to address an issue on which the legislature and the state courts have not spoken. Concerns about multiple suits, unlimited liability and the difficulty of calculating damages arise each time a new cause of action is considered. Yet these concerns should not bar the action from the outset. If a jury is capable of calculating the intangible loss a parent suffers upon the negligent death of a child, Stevens v. Strauss, 147 Colo. 547, 364 P.2d 382 (1961), the converse must be equally true. The child’s loss of parental consortium is no more intangible than that of a parent-spouse.

I am equally unpersuaded by the assertion that monetary compensation will not restore the loss a child suffers. Hoesing v. Sears, Roebuck & Company, 484 F.Supp. 478 (D.Neb.1980); Borer v. American Airlines, Inc. (supra.). To suggest that a monetary award could replace a parent’s care and society is an absurdity. However, as the Wisconsin Supreme Court noted, “it is the only workable way that our legal system has found to ease the injured party’s tragic loss. We recognize this is a shortcoming of our society, yet we believe that allowing such an award is clearly preferable to completely denying recovery.” Theama v. City of Kenosha, 117 Wis.2d 508, 523, 344 N.W.2d 513 (1984).

The argument that a court’s compensating this loss would be speculative or impossible of calculation also rings hollow. Such remoteness or speculation has not barred a husband’s or wife’s cause of action, Duffy v. Gross, 121 Colo. 198, 210-11, 214 P.2d 498, 505 (1950) or a parent’s recovery for loss of a child’s services. Stevens v. Strauss, (supra.).

Numerous studies reveal that the bereavement reaction of a young child impairs the child’s social functioning with the family, at school, and in the child’s peer group. Commonly, children do not understand what has happened when a parent dies, often equating death with abandonment or punishment. A child may experience feelings of guilt, rejection, and loss of self-esteem. In its more acute initial stage, loss of a parent is a traumatic experience often manifested by depression, fear of entering new relationships, and a poor self-concept. Early parent death has also been linked to later adult depression, schizophrenia, sociopathic personality, and various other unspecified psychoneurosis.

For young children, as in this case, monetary compensation could have a direct effect on the continuing impact of the loss of a parent and the restoration of a more normal family unit. For one, the recovery could be used to hire a housekeeper or caretaker to assume the duties left by the decedent, perhaps even to enable the children to remain at home. For another, counselling or therapy might be sought were the expenses provided for. Finally, therapeutic intervention at later stages in the child’s development could also be entertained.

As the court in Berger v. Weber (supra.) noted in assessing the impact such a recovery would have on insurance costs:

[Compensating a child who has suffered emotional problems because of the deprivation of a parent’s love and affection may provide the child with the means of adjustment to the loss. The child receives the immediate benefit of the compensation, but Society will also benefit if the child is able to function without emotional handicap. This may well offset any increase in insurance premiums.

Id. 303 N.W.2d at 426.

Protecting a child’s right to a secure home environment is a manifest legislative policy in Colorado. The Children’s Code, Colo.Rev.Stat. § 19-1-101 et seq. (1973) provides in part:

(1) The general assembly declares that the purposes of this title are:
(a) To secure for each child subject to these provisions such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society;
(b) To preserve and strengthen family ties, including improvement of the home environment.

For the state to declare its responsibility to protect and foster the parent-child relationship in this context and to ignore it when a third party negligently injures the family unit is too anomalous to be countenanced.

In holding that the Reighley children have an independent claim for the loss of parental consortium and companionship for the alleged negligent death of their mother, I concur in certain guidelines set forth by other jurisdictions for the management and determination of these actions. Wherever feasible, a child’s claim must be joined with that of a parent. If the child’s claim is brought separately, the burden will be on the minor to show why joinder is not feasible. Moreover, there must be a showing that a minor child is dependent on the deceased parent for both economic and emotional support. Each case should be judged on its own merits.

Upon the foregoing, it is

ORDERED that defendant’s motion for partial summary judgment, filed June 22, 1984, is granted in part and denied in part in accordance with this opinion, and it is

FURTHER ORDERED that the order to show cause, filed October 22, 1984, is discharged.

      . Recognition of a child's independent claim for loss of consortium has found considerable support in the legal commentary. See e.g. Maynes, Loss of Parental Consortium, 8 J.Juv.L. 219 (1984); Note, A Minor Child’s Claim for Lost Parental Society and Companionship in Illinois: Another Look, 17 J.Mar.L.R. 113 (1984); Note, Right of a Child to a Cause of Action for Loss of

        Society and Companionship When the Parent is Tortiously Injured, 28 Wayne L.Rev. 1877 (1982); Note, Parent's Right to Sue for Negligent Disruption of Parental Consortium, 22 Wash-burn L.J. 78 (1982); Note, The Child's Right to Sue for Loss of a Parent's Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L.Rcv. 722 (1977); Comment, The Child’s Claim [or Loss of Consortium Damages: A Logical and Sympathetic Appeal, 13 San Diego L.Rev. 231 (1975).

      . Defendant relies on Koskela v. Martin, 91 Ill.App.3d 568, 47 Ill.Dec. 32, 414 N.E.2d 1148 (1980), which denied the child's claim. The Hazen court distinguished Koskela both on the facts (the injury to the child's father was non-fatal) and the law (Koskela overlooked Illinois precedent and was decided much earlier).

      . E.A. Grollman, Ed., In Explaining Death to Children, Beacon Press, Boston, 1967; Wass & Corr, Childhood and Death, Hemisphere Publishing Co., McGraw-Hill, Washington (1984).

      . See, e.g., Johnson and Rosenblatt, Grief Following Childhood Loss of a Parent, American journal of Psychotherapy, Vol. XXXV, No. 3, July 1981; Dietrich, Psychological Health of Young Adults Who Experienced Early Parent Death: MMPI Trends, Journal of Clinical Psychology 40, 1984.


author: ALTIMARI, District Judge.

text:
    CITIZENS FOR AN ORDERLY ENERGY POLICY, INC., et al., Plaintiffs, v. The COUNTY OF SUFFOLK and Peter F. Cohalan, Defendants, Long Island Lighting Company and the Shoreham-Wading River Central School District, Intervenor-Plaintiffs.
    No. CV-83-4966.
    United States District Court, E.D. New York.
    March 18, 1985.

      Pacific Legal Foundation by Lucinda Low Swartz, Washington, D.C., for plaintiff Citizens for an Orderly Energy Policy.
    Edward M. Barrett by Rosalind M. Gordon, Mineóla, N.Y., Hunton & Williams by W. Taylor Reveley, III, James E. Farnham, K. Dennis Sisk, Richmond, Va., for intervenor-plaintiff Long Island Lighting Co.
    Lou Lewis, Poughkeepsie, N.Y., for plaintiff-intervenor Shoreham Wading River Central School Dist.
    Martin Bradley Ashare, Suffolk Co. Atty., Hauppauge, N.Y., Kirkpatrick, Lock-hart, Johnson & Hutchison by David A. Brownlee, Michael J. Lynch, Kenneth M. Argentieri, Pittsburgh, Pa., Kirkpatrick, Lockhart, Hill, Christopher & Phillips by Herbert H. Brown, Lawrence C. Lanpher, Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

ALTIMARI, District Judge.

The present controversy centers around the County of Suffolk’s lack of participation in off-site radiological emergency evacuation planning for the Long Island Lighting Company’s (“LILCO”) Shoreham Nuclear Power Facility (“Shoreham”), an 809 megawatt nuclear powered electric generating facility located on Long Island’s north shore in the County of Suffolk (the “County”). LILCO and its supporters contend that the County’s actions may result in the denial of an operating license for Shoreham and spell financial doom and bankruptcy for the company. The County and its supporters, including the Governor of the State of New York, see Cuomo v. Long Island Lighting Co., 589 F.Supp. 1387 (E.D.N.Y.1984), contend that in the event of a nuclear accident at Shoreham, safe and speedy evacuation is a geographical impossibility, and that the County may rightly refuse to participate in any emergency planning.

FACTS

Plaintiffs, Citizens for an Orderly Energy Policy, Inc., a not-for-profit corporation, and five of its members (hereinafter collectively referred to as “Citizens” or “Plaintiffs”) commenced this action on or about November 10, 1983. Thereafter on April 11, 1984, the Court granted LILCO and the Shoreham-Wading River Central School District (the “District”) leave to intervene as plaintiffs. See 101 F.R.D. 497 (E.D.N.Y. 1984).

Citizens’ complaint alleges the following. In early 1975, the County started to assist LILCO in the development of an emergency plan for Shoreham. This spirit of cooperation is said to have lasted until early 1982 when the Suffolk County Legislature adopted the first of three resolutions.

On March 23, 1982, the legislature adopted resolution No. 262-1982. That resolution, in relevant part, directs the Suffolk County Planning Department to prepare “a County Radiological Emergency Response Plan to serve the interest of safety, health and welfare of the residents of Suffolk County____” The resolution further stated that the plan was not to be submitted to the Federal Emergency Management Agency (“FEMA”) and the Nuclear Regulatory Commission (“NRC”) until approved by the County Legislature.

Resolution No. 456-1982, adopted -on May 18, 1982, provides that the County has the primary responsibility for the protection of its residents in the event of a nuclear accident at Shoreham; that the County “intends through good faith and sound planning efforts to assure that the best possible emergency plan and preparedness are developed”; and that LILCO has “gone beyond its powers as a private corporation in an attempt to usurp the rightful powers of Suffolk County.” In addition the resolution provided that

Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been fully developed to the best of the County’s ability.
Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been the subject of at least two public hearings, one to be held in River-head, and one to be held in Hauppauge. Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been approved, after public hearings, by the Suffolk County Legislature and the County Executive.

The third and central resolution, No. 111-1983, was adopted on February 17, 1983. In sum, the six page resolution states that after extensive study the legislature determined that no emergency plan could adequately protect the health and safety of the County’s residents and, therefore, no local plan was to be adopted or implemented. Accordingly, the County’s radiological emergency planning process was terminated and the County Executive was “directed to take all actions necessary to assure that actions taken by any other governmental agency, be it state or federal, are consistent with the decisions mandated by this Resolution.”

Plaintiffs allege that the County’s resolutions “were enacted solely on the basis of a perceived need to protect the public from the dangers of nuclear power.” Complaint at par. 21. They assert that the County’s resolutions express an intent to refuse to develop or consider any emergency plan and to determine the adequacy of all radiological response plans in an attempt to regulate the operation of Shoreham on the basis of radiological hazards and safety, a field preempted by federal law. In addition, they contend that the County’s decision that no emergency plan could adequately protect the public health and safety is in conflict with the NRC’s responsibility to determine such issues and frustrates the federal policy of encouraging the development of nuclear power. Accordingly, plaintiffs seek a judgment declaring the above resolutions void and illegal as preempted by the Atomic Energy Act (the “AEA”). 42 U.S.C. § 2011, et seq.

For their state law cause of action, plaintiffs contend that the County has a state constitutional duty to protect the health, safety and welfare of its residents, see N.Y. Const, art. 9, § 2(c)(10), and a statutory duty to prepare a local disaster preparedness plan and to provide assistance and relief in the event of a radiological emergency. See N.Y.Exec.Law §§ 20, 23, 25 (McKinney 1982). Plaintiffs maintain that the County’s refusal to participate in emergency planning and its intended refusal to act should an accident occur are contrary to the County’s duty. For their relief, plaintiffs seek an injunction requiring the Suffolk County Planning Department to develop or assist in the development of a radiological emergency response plan for Shoreham and requiring the County to make available all necessary resources in order to protect the health and safety of its residents.

LILCO’s intervenor complaint makes two claims for relief. First, it endorses plaintiffs’ argument that the County’s resolutions and acts “constitute an impermissible attempt by a local government to regulate and prevent the operation of a commercial nuclear power station on grounds ... regarding radiological safety” and are, therefore, preempted by the AEA. . LILCO Complaint at par. 57. Second, LILCO alleges that “defendants’ about-face regarding emergency planning for Shoreham, predicated as it was on an impermissible usurpation of the NRC’s exclusive regulatory authority, constitutes an arbitrary, capricious, and malicious deprivation of LILCO’s property without due process of law.” Id. at par. 58; see LILCO complaint par. 56. By way of relief, LILCO seeks a judgment declaring the resolutions in question void and illegal. In addition, unlike Citizens, LILCO seeks an injunction under 42 U.S.C. § 1983 and the due process clause of the United States Constitution “requiring Suffolk County and [Peter] Cohalan to fulfill their duty to exercise their governmental functions fairly by taking all reasonable steps necessary to assist LILCO in emergency planning for Shoreham.”

Lastly, the district’s intervenor complaint is essentially identical to Citizens but adds that defendants’ acts have specifically violated the AEA and give rise to jurisdiction under the AEA itself.

Defendants move to dismiss the original and intervenor complaints pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). While defendants challenge Citizens’ standing to maintain the action and have raised other jurisdictional questions, and while “[intervention cannot cure any jurisdictional defect that would have barred the ... court from hearing the original action,” 7A C. Wright & A. Miller, Federal Practice and Procedure, § 1917, at 584 (1972), the court has decided to address the three motions to dismiss in one opinion regardless of the determination on Citizens’ standing. The court follows this procedure because if Citizens is without standing, LILCO’s pleading would be considered as a separate action with an independent basis for jurisdiction over defendants. Failure to adjudicate LILCO’s claim would merely require LILCO to file a new suit and bring the parties to the point where they now stand after an unnecessary delay. See Miller & Miller Auctioneers, Inc. v. G. W. Murphy Industries, Inc., 472 F.2d 893, 895-96 (10th Cir.1973); Hackner v. Guaranty Trust Co., 117 F.2d 95 (2d Cir.), cert. denied, 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520 (1941); Corporacion Venezolan de Fomento v. Vintero Sales Corp., 477 F.Supp. 615, 622 (S.D.N.Y.1979). Moreover, while it is sometimes said that an intervenor accepts the pleadings as he finds them and may not add a claim, for much the same practical reason of avoiding unnecessary delay, and because defendants have not objected and have addressed the issue, it is proper for LILCO to prosecute its additional claim under the Civil Rights Act.

DISCUSSION

I

Initially, the County challenges this court’s jurisdiction over this action. Citizens contends that this action arises under federal law. See 28 U.S.C. § 1331. Specifically, Citizens cites the Constitution’s supremacy clause, U.S. Const, art. VI, cl. 2, which is the basis of the preemption doctrine, and the Atomic Energy Act. 42 U.S.C. § 2011 et seq. The intervenors echo Citizens’ contentions. The defendants maintain that Citizens’ action does not arise under the supremacy clause because plaintiffs are incorrect in their assertion that the County’s actions are preempted by the AEA. The defendants also argue that a cause of action may not arise solely under the supremacy clause, because that clause is not a source of federal rights. Additionally, the defendants contend that Citizens’ action may not be said to arise under the AEA because the AEA expressly precludes private actions to enforce its terms and the plaintiffs have alleged no substantive violation of the AEA.

An action may be said to arise under an Act of Congress if it presents an issue requiring construction or interpretation of that Act. Ivy Broadcasting Co. v. American Telephone and Telegraph Co., 391 F.2d 486, 493 (2d Cir.1968); T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir.1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965). Note, The Outer Limits of “Arising Under,54 N.Y.U.L.Rev. 978, 1004 (1979).

In the instant case, the critical issue, at least with regard to Citizens’ federal cause of action, is whether the AEA preempts the County’s resolutions. This issue turns squarely on the construction and interpretation of the AEA. Plaintiff’s first claim for relief, along with the identical claims of the intervenors, must necessarily arise under the AEA, notwithstanding that the AEA does not provide for private' enforcement of its terms. See Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231, 238 (3d Cir.1980), (“ ‘no action’ language in 42 U.S.C. § 2271(c) is not couched in jurisdictional terms”), cert. denied, sub nom, General Public Utilities Corp. v. Susquehanna Valley Alliance, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981).

As this court recently stated in a related case involving most of the parties now before the court:

the fact that plaintiffs could not have originally commenced this action in this Court under the AEA [does not necessarily bar] removal of their actions to the federal court. So long as a federal question appears on the face of plaintiffs’ complaint ... removal would be proper.

Cuomo v. Long Island Lighting Co., 589 F.Supp. at 1395. Moreover, as another judge of this court has stated, “[t]he availability of a federal remedy is unnecessary to create ‘arising under’ jurisdiction as long as plaintiffs’ right to relief depends upon the construction or application of federal law.” County of Suffolk v. Long Island Lighting Co., 549 F.Supp. 1250, 1257 (E.D.N.Y.1982). In fact, plaintiffs do not allege a violation of the terms of the AEA or seek relief thereunder. Instead they seek relief under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, by way of a judgment declaring defendants’ acts illegal and void as preempted by federal law.

Accordingly, in cases most analogous to the one at bar, courts have exercised jurisdiction and reached the merits of the controversy before them. For example, in United States v. City of New York, 463 F.Supp. 604 (S.D.N.Y.1978), plaintiff sought a judgment declaring section 175.-107(c) of the New York City Health Code unconstitutional insofar as it had been preempted by the AEA. The Court concluded that it had jurisdiction over plaintiff’s claim since it arose under the AEA. Id. at 607. Other cases are not to the contrary. Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir.1971), aff'd mem., 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972).

Because plaintiff’s first cause of action requires construction and interpretation of the AEA, it arises under that statute. As with a plaintiff who seeks' injunctive relief from state regulation, “[a] plaintiff who seeks [declaratory] relief from state regulation, on the ground that such regulation is preempted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.” Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 2899 n. 14, 77 L.Ed.2d 490 (1983). To suggest otherwise would create a void in federal jurisdiction in this critical area.

In addition, whether or not LILCO’s complaint under 42 U.S.C. § 1983 states a cause of action on which LILCO could actually recover, the claim alleged is not so patently without merit, wholly insubstantial, or essentially frivolous as to warrant dismissal for lack of jurisdiction. See Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577 (1974); State of New York District Attorney Investigators Police Benevolent Association, Inc. v. Richards, 711 F.2d 8, 10 (2d Cir.1983); Kohl Industrial Park Co. v. County of Rockland, 710 F.2d 895, 899 (2d Cir.1983).

II

Defendants next challenge Citizens’ and the District’s standing to prosecute this action. Significantly, defendants have not challenged LILCO’s standing; the determination of standing will, therefore, not bar consideration of the essential questions raised in this litigation.

The requirement of standing “subsumes a blend of constitutional requirements and prudential considerations.” Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citing Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975)). Article III of the Constitution “requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of putatively illegal conduct of the defendant; and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’ ” Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. In addition, the Supreme Court has established a nonconstitutional standing requirement “that the interest of the plaintiff, regardless of its nature in the absolute, at least be ‘arguably within the zone of interests to be protected or regulated’ by the statutory framework within which his claim arises.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 39 n. 19, 96 S.Ct. 1917, 1925 n. 19, 48 L.Ed.2d 450 (1976) (quoting Data Processing Service v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970)).

An association, such as Citizens, has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purposes; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Hunt v. Washington Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1976). Defendants contend that Citizens fails to satisfy the first criteria of this standard and thus lacks standing.

Citizens alleges that its members suffered an injury by virtue of the harm they will suffer as taxpayers, LILCO ratepayers, LILCO shareholders, and persons residing within the Shoreham area. The mere fact that a person is a taxpayer is an insufficient basis for standing to object to particular government conduct. Valley Forge, 454 U.S. at 464, 102 S.Ct. at 752. Similarly, conferring standing on any person who is a LILCO ratepayer would permit judicial actions by millions of persons with only the most “generalized grievance.” Id. at 470, 478-79, 102 S.Ct. at 757, 761-62. Furthermore, the mere fact that a person is a shareholder does not endow that individual with standing to bring suit whenever the corporation’s interests are at issue, even though the value of the shareholder’s stock may arguably be affected. Vincel v. White Motor Corp., 521 F.2d 1113, 1118 (2d Cir.1975); Weiner v. Winters, 50 F.R.D. 306, 310 (S.D.N.Y.1970).

Citizens also argues, however, that its members have standing to sue by virtue of the fact that they are residents of the Shoreham area. Citizens projects that if the County prevents Shoreham from operating, then LILCO will build a non-nuclear facility in the vicinity. That other facility would then have an adverse effect on the environment. Citizens analogizes its situation to that of the plaintiffs found to have standing in Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1977).

The plaintiffs in Duke Power were persons living in the vicinity of a nuclear power plant under construction. They alleged in their cause of action that the Price-Anderson Act, which limited liability in the case of a nuclear accident, violated their rights under the fifth amendment. Id. at 67-68, 98 S.Ct. at 2627. To establish an injury sufficient to confer standing, plaintiffs alleged that the plant being constructed would: emit small quantities of non-natural radiation; cause thermal pollution of recreational waters and interfere with the normal use of a local river; reduce neighboring property values; create an objectively reasonable fear of harm in the plaintiffs; and continually threaten an accident for which plaintiffs would not be adequately compensated. Id. at 73, 98 S.Ct. at 2630.

The Supreme Court found that the plaintiffs in Duke Power had standing based upon “the ‘immediate’ adverse effects” that harmed the plaintiffs. Id. Specifically, the court cited “the environmental and aesthetic consequences of the thermal pollution of the two lakes in the vicinity____ And the emission of non-natural radiation.” Id. at 73-74, 98 S.Ct. at 2630. The court avoided deciding whether “the possibility of a nuclear accident and the present apprehension generated by this future uncertainty, are sufficiently concrete to satisfy constitutional requirements.” Id. at 73, 98 S.Ct. at 2630.

A claim that environmental harm has resulted from a defendant’s action is a sufficient injury in fact to confer standing. In this case, Citizens’ allegation that defendants’ actions might cause the abandonment of Shoreham, which in turn would cause the construction of a non-nuclear, polluting facility in the area, is somewhat attenuated. It is not nearly so attenuated, however, as the allegation held sufficient to confer standing in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

In SCRAP an unincorporated association formed by five law students from the District of Columbia metropolitan area objected to a railroad rate increase on the theory that such an increase would “cause use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area.” Id. at 688, 93 S.Ct. at 2416. The court held that SCRAP had standing because it could not be said that the pleaded allegations would not be proved at trial. Id. at 689-90, 93 S.Ct. at 2416-17.

Citizens’ allegations of environmental harm, if true, are sufficient injury in fact to support standing. The court may not at this point say that Citizens’ allegations would not prove true at trial. Furthermore, promoting nonpolluting sources of energy in order to protect the environment is an interest germane to Citizens’ purposes as an organization. Accordingly, Citizens has pleaded a sufficient basis for standing. See Rockford League of Women Voters v. United States Nuclear Regulatory Commission, 679 F.2d 1218, 1221-22 (7th Cir.1982) (organization with members living in vicinity of unlicensed nuclear plant has standing to challenge NRC refusal to revoke construction permit).

Defendants also contend that the District does not have standing. The injury in fact to the District is, however, more direct and concrete than that to Citizens. “There is no question that an association may have standing in its own right to seek judicial relief from injury to itself.” Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1974). The District, as a utilizer of tax revenues generated by property values, is directly affected by any actions of the County which effect the usefulness of Shoreham and its environs. Even the appearance that the County may prevent Shoreham from operating could have a direct effect on the District’s economic well-being and ability to provide for its residents.

Lastly, the defendants argue that both Citizens and the District seek to advance interests not within the zone of interests of the AEA. The zone of interests test is a prudential requirement for standing apart from the case or controversy requirements of Article III. First formulated by the Supreme Court in Data Processing v. Camp, the zone of interests test requires that “the interest sought to be protected by the complaint is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Data Processing v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1969) (emphasis added).

The zone of interests test is, by its terms, a liberally applied standard. The AEA states as one of its purposes the effectuation of “widespread pai icipation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the public defense and security and with the health and safety of the public.” 42 U.S.C. § 2013(d). The environmental and economic interests of the District and Citizens fall, at least arguably, within the zone of interests created by the AEA’s broad purposes.

It has been necessary to address the issue of standing because standing is a threshhold issue as to whether the particular parties to an action are properly before the court. Accordingly, it is determined that Citizens and the District do have standing to pursue their alleged causes of action. It should be noted, however, that given the unchallenged standing of LILCO in this matter the essential interests of Citizens and the District would be addressed regardless of their standing.

Ill

The next issue to be addressed is whether plaintiffs’ claim that the County’s resolutions have violated the supremacy clause by attempting to regulate a preempted area states a valid cause of action. As this matter is currently before the court on a motion to dismiss, the material factual allegations of the complaint are accepted as true for the purpose of deciding the instant motion. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070, 1074 (2d Cir.1982). It would appear, at any rate, that there is little disagreement concerning the chain of factual occurrences which has brought the parties to this point. It also appears that there is little disagreement concerning the relevant case law bearing on the issue to be decided. Both sides of the controversy cite Pacific Gas and Electric Company v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), and Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), in support of their positions.

Reduced to its simplest form, plaintiffs’ theory runs as follows. The defendants’ conduct regarding radiation emergency response planning amounts to local regulation of the health and safety aspects of nuclear power production. All local regulation of the health and safety aspects of nuclear power production is federally preempted. The defendants’ conduct regarding radiation emergency response planning is, therefore, preempted. Accordingly, plaintiffs seek a judgment declaring the County’s resolutions to be void and illegal.

Plaintiffs’ argument is, of course, logically compelling if their premises are correct. The argument fails, however, because the conduct of the defendants has not in fact amounted to a regulation of nuclear power production. The defendants have not acted in contradiction of the AEA and plaintiffs’ cause of action must fail.

There are three basic means by which Congress may preempt state authority. First, it may do so expressly. Second, Congress may form a “scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it.” Pacific Gas, 103 S.Ct. at 1722 (citation omitted). Third, Congress may preempt state law to the extent that the state law conflicts with federal law. Id. The federal government has in fact occupied the entire field of nuclear power safety. Id. at 1726. The County may not, therefore, regulate nuclear power production or create a moratorium on the construction of nuclear power plants because of safety concerns.

It is not disputed that defendants oppose Shoreham’s operation. See Defendants’ Memorandum in Response to Long Island Lighting Company’s Memorandum in Opposition to the Motion to Dismiss at 2. There are, however, some channels available in which defendants may express their opposition without impermissibly regulating nuclear safety. Defendants certainly may advocate their views before the NRC despite plaintiffs’ contention that such advocacy is part of the defendants’ overall plan to thwart nuclear power production. See 10 CFR § 2.715(c) (1984). Similarly, defendants do not impermissibly regulate by pursuing alleged grievances with LIL-CO in the state and federal courts.

The only act of defendants which may arguably be said to regulate nuclear safety is the passage of resolutions 262-1982, 456-1982 and 111-1983. These resolutions effectively established the County’s policy to oppose nuclear power facilities within its borders and to refuse to cooperate in radiological emergency response planning. Plaintiffs’ argument is somewhat unique in that the County’s refusal to act in a given area is what is objected to as preempted. Although the passage of the resolutions may be said to be a positive act, in essence the resolutions merely manifest the County’s intention not to engage in emergency planning. In order to determine whether defendants’ refusal to participate is in fact a preempted regulation of nuclear safety, the court looks to judicial precedent and the legislative history of the AEA for guidance.

A local government may not establish itself as a second nuclear regulatory authority with safety requirements over and above those of the NRC. In Northern States Power Company v. Minnesota, for example, the Eighth Circuit held that Minnesota could not exert dual control with the Atomic Energy Commission (“AEC”) over the level of radioactive effluent that could be discharged by a nuclear facility. 447 F.2d 1143, 1149 (1971), aff'd mem., 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972). Similarly, in United States v. City of New York, it was held that New York City could not require nuclear reactor operators to obtain a city license in addition to an AEC license. 463 F.Supp. 604, 613-14 (S.D.N.Y.1978).

Northern States Power and City of New York provide examples of preempted conduct, but their application to the facts in this case is limited. Certainly the County may not require LILCO to’ comply with the County’s requirements for a satisfactory RERP; whether LILCO’s RERP is sufficient is a question for the NRC, and the County may not override the NRC’s judgment. Here, however, the County has not passed a moratorium on nuclear plant construction and operation based on the County’s opinion that no satisfactory RERP can be devised. Rather the County has adopted the position that a satisfactory RERP is not obtainable. The County has not and cannot supersede the judgment of the NRC on whether or not a license should issue for Shoreham. Once the NRC makes that decision the County’s opinion on LIL-CO’s RERP will become academic.

Pacific Gas established that Congress had filled the field of nuclear power safety. 103 S.Ct. at 1726. That case, however, dealt with state legislation in the field of the economics of nuclear energy rather than health and safety. Accordingly, it sheds little light on what constitutes safety regulations by a local government

Silkwood, however, does give some guidance on the issue of safety regulations. Silkwood addressed the issue of whether a state could award punitive damages against a tortfeasor who was responsible for a radiation injury. Because punitive damages are a means of causing potential tortfeasors to exercise greater care, the damages in Silkwood could be seen as an impermissible attempt to regulate nuclear safety standards. Silkwood, 104 S.Ct. 615, 621-27.

The Silkwood court, however, held that punitive damages in cases involving radiation injuries are not preempted by the AEA. Id. The court considered that there was evidence that Congress did not intend to forbid states from providing for punitive damages. Id. at 623. The legislative history of the AEA indicated that Congress assumed that the traditional remedies of tort law would continue to “apply with full force unless they were expressly supplanted.” Id., 103 S.Ct. at 1721. The court recognized that there was tension between the conclusion that nuclear safety is the concern of federal law and the conclusion that the states may provide for punitive damages. That tension, however, was inherent in Congress’ approach to nuclear regulation. Id.

An examination of the relevant legislative history in this case leads to a similar conclusion. Congress was well aware of the possibility that local governments might refuse to cooperate in furnishing a RERP. The possibility that a state might frustrate completion of a RERP was expressly addressed from the floor of the Senate. Senator Johnston stated that it was “reasonable to expect” that states might “simply not ... submit an evacuation plan.” 125 Cong.Rec.S. 9473 (daily ed.) July 16, 1979. Senator Simpson commented that “[t]he possibility that ... a plant under construction could have its permit terminated because the state where it is sited has failed to form a plan ... is not a matter to which we should give only cursory attention.” Id.

The Senate debate on this point indicates that the Senate was aware that a local government could refuse to participate in emergency planning. The Senate did not, however, adopt an amendment to require local government participation. Presumably, the Senators were motivated at least partly by a reluctance to create “a fundamental shift in the federal system ... [that] would give some authority to the Federal Government which has never before been obtained by the Federal Government in this area.” Id. at S. 9476 (statement of Sen. Hart).

The Joint Explanatory Statement of the Committee on Conference states that

[t]he conferees sought to avoid penalizing an applicant for an operating license if a state or locality does not submit an emergency response plan to the NRC for review or if the submitted plan does not satisfy all the guidelines or rules. In the absence of a state or local plan that complies with the guidelines or rules, the compromise permits NRC to issue an operating license if it determines that a State, local or utility plan, such as the emergency preparedness plan submitted by the applicant, provides reasonable assurance that the public health and safety is not endangered by operation of the facility.

1980 U.S.Code Cong. & Ad.News 2260, 2270-71 (emphasis added). This passage indicates that Congress considered the possibility that a state or local government or both would fail to participate in emergency planning. Rather than require participation, Congress provided that the utility could provide a plan.

Plaintiffs in this action ask the court to find that the AEA preempts the County from refusing to participate in emergency planning. The facts in this case, however, present a stronger case against preemption than the facts in Silkwood. Congress foresaw the possibility of a local government refusing to cooperate, assumed that such refusal was within the local government’s discretion, and provided for the utility to present its own plan to the NRC.

Under these circumstances it cannot be said that the defendants have impermissibly entered the preempted area of nuclear power safety regulation. Plaintiffs’ claim for declaratory relief based on preemption is, therefore, dismissed.

IV

The state law claims of Citizens and the District are before this court based on pendent jurisdiction. Considering the dismissal of the federal causes of action of these two plaintiffs, the state law claims should now be dismissed as well. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Nolan v. Meyer, 520 F.2d 1276, 1280 (2d Cir.) cert. denied, 423 U.S. 1034, 96 S.Ct. 567, 46 L.Ed.2d 408 (1975).

V

Lastly, LILCO has alleged a violation of 42 U.S.C. § 1983. In order to state a valid cause of action under § 1983 LILCO must satisfy two criteria. First, the conduct complained of must have been committed under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1980). This criterion is not contested in the present action. Second, the complained of conduct must have deprived LILCO of rights, privileges, or immunities secured by the Constitution or laws of the United States. Id.

LILCO claims that the defendants violated LILCO’s statutory right under the AEA to seek a license to operate a nuclear power facility. 42 U.S.C. §§ 2133(b), 2137, 2235. It is unquestionably true that federal statutory rights may form the basis of a valid claim under § 1983. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). In this instance, however, there are flaws in plaintiff’s claim for relief.

First, the right which LILCO seeks to protect, the right to seek a license for Shoreham, has not been taken from it. LILCO is currently seeking a license from the NRC and the NRC alone has the power to decide whether the license will be granted. Defendants’ actions in seeking to influence the NRC’s decision are not in and of themselves an unlawful interference with the licensing process. See III, supra.

Second, although valid § 1983 claims may arise from federal statutes, not all federal statutes are a valid source of § 1983 claims. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981). In order to determine whether a particular statute gives rise to a § 1983 claim the courts must consider “(i) whether Congress had foreclosed private enforcement of the statute in the enactment itself, and (ii) whether the statute at issue [is] the kind that [creates] enforceable ‘rights’ under § 1983.” Id.

Maine v. Thiboutot provides an example of the type of statute found to give rise to rights under § 1983. In Thiboutot, the Maine Department of Health and Human Services interpreted 42 U.S.C. § 602(a)(7) to require payment of Aid to Families with Dependent Children to Lionel Thiboutot based on his three children from his first marriage. Thiboutot did not receive any aid for his five children from his second marriage even though he was legally obligated to support them. Maine v. Thiboutot, 448 U.S. at 3, 100 S.Ct. at 2503. The court found that Thiboutot did in fact have a § 1983 claim under the Social Security Act. Id. at 4-8, 100 S.Ct. at 2504-06.

Middlesex County, on the other hand, provides an example of a statute that does not give rise to rights under § 1983. 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). In Middlesex County, the court found that the Federal Water Pollution Control Act and the Marine Protection, Research, and Sanctuaries Act were comprehensive pieces of legislation and that Congress did not intend them to create a right of action under § 1983. As a result, the shellfish harvesters who brought the action were not afforded rights under § 1983. Id. at 20-21, 101 S.Ct. at 2626-27. Similarly, the Ninth Circuit held in First National Bank of Omaha v. Marquette National Bank that allowing a cause of action under § 1983 “for interference with rights pursuant to the National Bank Act, would represent a dramatic and unwarranted extension of the Civil Rights Act. We do not believe that such a departure is mandated by the opinion in Thiboutot or that such a cause of action was within the intent of the Congress that enacted the civil rights statutes.” 636 F.2d 195, 199 (1980).

The situation presented by the facts of this case is more similar to that in Middle-sex and First National Bank than in Thiboutot. The AEA is a complex, comprehensive piece of legislation which does not provide for private causes of action. LIL-CO’s § 1983 claim, therefore, may not be based on an alleged violation of the AEA.

LILCO also alleges that it is entitled to relief under § 1983 because defendants have violated its right to property in the Shoreham facility. The problem with this theory is that a taking of Shoreham has not occurred; the question of whether or not Shoreham will be granted an operating license is currently before the NRC. See Long Island Lighting Co. v. County of Suffolk, 604 F.Supp. 759 (E.D.N.Y.1984). At this point in time LILCO has lost only the support of the County before the NRC, which, until 1982, LILCO had expected to receive. Such an expectation of support before a federal regulatory agency does not constitute a property right.

LILCO argues that its investment-backed reasonable expectation of County support is sufficient to establish a property interest under Ruckelshaus v. Monsanto Co. — U.S. -, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). Monsanto, however, merely held that an intangible bundle of rights, such as exists in a trade secret, may constitute property under the fifth amendment. Id., 104 S.Ct. at 2871-79. Plaintiff in effect asks this court to go several steps further than Monsanto in order to hold that an intangible expectancy of a future occurrence constitutes property under the Constitution.

LILCO’s argument on this point is similar to that of the plaintiff in Beacon Syracuse Associates v. City of Syracuse, 560 F.Supp. 188 (N.D.N.Y.1983). In Beacon, the plaintiff brought a § 1983 claim because the city had instituted a new urban renewal plan. Id. at 191-92. Plaintiff alleged that the new plan violated his constitutional property rights by frustrating his “investment-backed expectations.” Id. at 197. The Beacon court found that plaintiff had “no property interest entitled to due process protection.” Id. at 198. This court reaches the same conclusion as to LILCO in this case.

LILCO next alleges that it has been denied a protected liberty interest without due process of law. Producing nuclear power, LILCO argues, is a legal activity encouraged by federal policy. LIL-CO may not be denied the right to engage in such a legal activity without due process. See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) (right to practice law); Freitag v. Carter, 489 F.2d 1377 (7th Cir.1973) (right to obtain taxicab license).

One immediately apparent distinction between most of the cases relied on by LIL-CO and the facts in this case is that defendants have not denied LILCO a license. If LILCO is denied a license, it will be by the NRC. Under these circumstances, it would seem that whatever process is due in the licensing process is due from the NRC and not from the defendants.

At least one case, however, does stand for the proposition that it may be a denial of liberty for a government entity to merely influence a licensing process. In Flores v. Pierce, the City of Calistoga, California, filed official protests with the State Department of Alcohol Beverage Control in order to prevent the issuance of a liquor license to certain individuals. 617 F.2d 1386, 1388 (9th Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980). The City acted as it did in order to discriminate against the applicants as Mexican-Americans. Id. The evidence in the case established that the City’s protests were intended to delay, and did in fact delay, the issuance of a license based on the plaintiff’s race and national origin. Id. at 1391.

The problem with applying Flores to the instant situation is that Flores involved a plaintiff who was a member of a suspect classification. Nevertheless, the court accepts Flores as precedent for the general proposition that mere interference in a licensing process may under some circumstances violate a constitutionally protected liberty interest.

LILCO’s argument that its liberty interest has been violated is closely related to its final argument that it has been denied equal protection under the law. LIL-CO contends that other entities within the County are not denied County services, such as those of the police and fire departments. Because it is being treated differently from other entities similarly situated, LILCO argues that defendants have violated the Constitution’s equal protection requirement. See Memorial Hospital v. Maricopa, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (denial of medical services to indigent people who exercise right to travel); Thompson v. New York, 487 F.Supp. 212, 213, 216-17 (N.D.N.Y.1979) (denial of police and fire services to American Indians).

Unlike the plaintiffs in Memorial Hospital, Thompson and Flores, LILCO is not a member of a protected class. LILCO’s claim that defendants’ actions violated its liberty and equal protection rights can only succeed if the County has no rational basis for opposing Shoreham’s licensing. See, e.g., Schware, 353 U.S. at 238-39, 77 S.Ct. at 755-56.

The rational basis standard is not a difficult standard for the County to satisfy. All that needs to appear is that the County acted in furtherance of a legitimate 'objective and its acts were rationally connected to that end. Id. In applying the rational basis test this court may not apply its own judgment as to whether or not the County acted in the best interests of its residents. This court is not a super-legislature which approves or disapproves of local government policy. If any state of facts justifies the County’s actions, then the County has withstood the rationality standard.

LILCO argues that because the County may not regulate nuclear safety and health that it may not claim the health and safety of its residents as a legitimate objective. While it is true that the County may not regulate nuclear safety, it does not follow that the County may not try to influence those who do regulate nuclear safety. The County’s actions may, therefore, be directed toward the objective of protecting its residents.

LILCO further argues that if the County were truly interested in the health and safety of its residents, then it would try to develop an emergency evacuation plan. The County, however, through its elected legislators, has taken the position that a satisfactory evacuation plan cannot be fashioned and that it can best provide for the health and safety of its residents by refusing to cooperate with LILCO in an attempt to convince the NRC otherwise. This court may not second guess the wisdom of that decision.

As the County has not acted without a rational connection to a legitimate interest, LILCO’s equal protection and liberty argumerits must fail. LILCO’s § 1983 claim is dismissed.

CONCLUSION

For the reasons stated above, defendants’ motion to dismiss pursuant to F.R. Civ.P. 12(b)(1) and 12(b)(6) is granted. The clerk is directed to enter judgment accordingly.

SO ORDERED.

      . Defendants contend that this teaching from Pacific Gas, which was not necessary to the court’s determination in that case, does not survive the court's subsequent decision in Silkwood. See Wilkwood, 104 S.Ct. at 627-28 (Blackmun, J., dissenting) (Pacific Gas incompatible with Silkwood). Because the defendants did not in fact regulate nuclear safety or create a moratorium on plant construction, it is not now necessary to resolve any tension between the two cases.

      . The Atomic Energy Commission was the predecessor of what is now the NRC.