text:
    O. Leon WOOD a/k/a Leon Wood, Plaintiff, v. NATIONAL BASKETBALL ASSOCIATION, an unincorporated association comprised of Atlanta Hawks, Boston Celtics, Chicago Bulls, Cleveland Cavaliers, Dallas Mavericks, Denver Nuggets, Detroit Pistons, Golden State Warriors, Houston Rockets, Indiana Pacers, Kansas City Kings, Los Angeles Clippers, Los Angeles Lakers, Milwaukee Bucks, New Jersey Nets, New York Knicks, Philadelphia 76ers, Phoenix Suns, Portland Trail Blazers, San Antonio Spurs, Seattle Supersonics, Utah Jazz, Washington Bullets, The National Basketball Players Association and the Philadelphia 76ers Basketball Club, Inc., Defendants.
    No. 84 Civ. 6582 (RLC).
    United States District Court, S.D. New York.
    Oct. 25, 1984.

      Elliott H. Pollack, Attorney for Plaintiff, New York City, for plaintiff; Fred L. Slaughter, of counsel.
    Proskauer, Rose, Goetz & Mendelsohn, New York City, for NBA and Philadelphia 76ers; Jeffrey A. Mishkin, James H. Aibel, Gary B. Bettman, Gen. Counsel, NBA, New York City, of counsel.
    Weil, Gotshal & Manges, New York City, for defendant Nat. Basketball Players Ass’n; James W. Quinn, Jeffrey S. Klein, Joel C. Schochet, New York City, of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

Leon Wood, a talented college basketball player, and a member of the United States basketball team that won the gold medal in the Olympic games this past August in Los Angeles, has brought this action alleging that the National Basketball Association’s (“NBA”) college draft, maximum team salary rules and ban on player corporations constitute violation of section 1 of the Sherman Act, 15 U.S.C. § 1. Plaintiff seeks a preliminary injunction barring enforcement of the 1983 memorandum of understanding between the NBA and the NBA Players Association (“Players Association”) pursuant to which the maximum team salary limitation was imposed, restraining defendants from refusing to deal with a corporation formed by plaintiff and outlawing the college draft as illegal restraints under the Sherman Act.

Plaintiff was selected by the Philadelphia 76ers Basketball Club (“Philadelphia”) in the NBA annual college draft on June 19, 1984. Thereafter, Philadelphia and Wood’s representative, Fred L. Slaughter, began negotiations. No agreement was reached, and plaintiff was offered a one year contract at $75,000. Patrick Williams, Vice President and General Manager of Philadelphia, states in his affidavit filed in this ease that the contract was offered to Wood not because of the limitations of the 1983 memorandum agreement, but to preserve Philadelphia’s exclusive right to negotiate with Wood pursuant to NBA regulations now operative in re rookie players. Williams asserts that Philadelphia was prepared to seek a way around the salary cap in order to negotiate a multi-year contract with Wood but could not get Slaughter to work out the terms.

Plaintiff has declined to accept the one year $75,000 offer. Plaintiff contends that he is suffering irreparable injury in being required either to sign a one year contract with Philadelphia at a level far below his value in an open market or forego playing basketball in the Nj3A for one season. He alleges that in signing at a salary not commensurate with his talents he would be exposing himself to a career ending injury. He urges the court to grant him preliminary relief requiring Philadelphia to negotiate with plaintiff unfettered by the restrictions the college draft, salary cap and bar on player corporations impose.

A brief summary of the facts and transactions leading to the allegedly illegal NBA practices and procedures may help inform understanding. In 1970 a group of NBA players instituted an antitrust suit against the NBA challenging the reserve clause which gave one club the exclusive rights to the services of a player, the reserve compensation clause, college draft and other player allocation devices which the players alleged restricted competition. The litigation was pursued as a class action on behalf of all present NBA players and all those who would become NBA players pri- or to final judgment. The class plaintiffs were represented by the NBA Players Association, a defendant here.

On April 29, 1976, a settlement was reached after extensive arms-length negotiations between the NBA representatives, and representatives of the players which included the General Counsel of the Players Association and several named plaintiffs in the action. The settlement agreement eliminated the reserve clause, phased out the reserve compensation clause, modified the college draft, provided a $4.6 million settlement fund, and established machinery for judicial oversight of enforcement and implementation of the terms of the settlement. The settlement agreement was approved by this court, and the Court of Appeals. Robertson v. NBA, 72 F.R.D. 64 (S.D.N.Y.1976) (Carter, J.), aff'd, 556 F.2d 682 (2d Cir.1977).

In 1983 the Robertson agreement was modified by a memorandum of understanding. Again, agreement was reached through intensive arms-length negotiations between representatives of the NBA and the Players Association. The agreement imposed a maximum and minimum team salary limitation. Each team is required through the 1986-87 playing seasons to pay in players’ salaries and benefits at a minimum a certain percentage of overall NBA gross revenues projected for each upcoming playing season. Conversely, no team will be permitted to exceed in players’ salaries and benefits a certain specified percentage of NBA annual gross revenues. In no case, however, will the salary cap be set below $3.6 million in the 1984-85 playing season, $3.8 million in 1985-86 playing season or $4.0 million in the 1986-87 playing season. The agreement allows for flexibility so that clubs who have reached the maximum salary limitations are able to exceed it to sign rookies, to replace retired or injured players and to sign veteran free agents. The memorandum of understanding was incorporated into a modification agreement pursuant to which the Robertson agreement remains in full effect except as expressly affected by the modification agreement. The modification agreement was presented to the court with a joint request by the NBA and the Players Association for court approval. On May 9, 1983, the court scheduled a hearing to determine whether the new agreement was fair, reasonable and adequate, and on June 13, 1983, filed a supplemental judgment in Robertson approving the agreement.

At the outset of our inquiry, it must be noted that the college draft as it now operates has been approved by this court and the Court of Appeals. The modification agreement with its maximum salary cap has been approved by this court. While the court’s function when presented with a settlement of class action litigation is not to decide the merits of the controversy, In re Traffic Executive Association-Eastern Railroad, 627 F.2d 631, 633 (2d Cir.1980), it must determine whether the settlement is fair, reasonable and adequate, Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert. denied, _ U.S. _, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983), and, moreover, must be satisfied that the settlement protects the rights and interest of absent members of the class. Vulcan Society of Westchester County, Inc. v. Fire Department of the City of White Plains, 505 F.Supp. 955, 961 (S.D.N.Y.1981) (Sofaer, J.). That an agreement containing features that violated federal antitrust laws would be approved at two levels of the judiciary is exceedingly unlikely.

The provisions under attack, the college draft and the maximum salary limitations, were, as indicated, the product of arms-length bargaining. The maximum team salary limitation clearly falls within the definition of terms and conditions of employment which are pursuant to § 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d), mandatory subjects of collective bargaining. NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); American Federation of Musicians v. Carroll, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460, reh. denied, 393 U.S. 902, 89 S.Ct. 64, 21 L.Ed.2d 189 (1968) (price floors for musicians were sufficiently related to the wages of employees to be a mandatory subject of bargaining); Local 24, IBT v. Oliver, 358 U.S. 283, 303-04, 79 S.Ct. 297, 308-09, 3 L.Ed.2d 312 (1959) (minimum rentals to be paid for use of equipment of owner-drivers were sufficiently related to the wages received by owner-drivers to be a mandatory subject of bargaining); Murphy Tugboat v. Shipowners & Merchants Towboat Co., Ltd., 467 F.Supp. 841, 856 (N.D.Cal.1979), aff'd, 658 F.2d 1256 (9th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982) (ceiling on port pilotage charges sufficiently related to wages received by employees to be within the definition of terms and conditions of employment.).

Similarly, the college draft constitutes a mandatory subject of collective bargaining since such rules determine the team which has exclusive rights to a player. In their original form in professional sports such rules severely circumscribed the movement of players from one team to another and operated to limit the leverage players might exert on owners to upgrade their salaries. See e.g., Mackey v. National Football League, 543 F.2d 606, 615 (8th Cir.1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); Smith v. Pro Football, 420 F.Supp. 738, 743 (D.D.C.1976), aff'd in part and rev’d in part on other grounds, 593 F.2d 1173 (D.C.Cir.1978).

The antitrust claim as to the college draft and the maximum salary limitation must fail. Both provisions affect only the parties to the collective bargaining agreement — the NBA and the players — involve mandatory subjects of bargaining as defined by federal labor laws, and are the result of bona fide arms-length negotiations. Both are proper subjects of concern by the Players Association. As such these provisions come under the protective shield of our national labor policy and are exempt from the reach of the Sherman Act. See Mackey v. National Football League, supra, 543 F.2d at 614-15. (In that case the court set out the above three requirements for labor exemption distilled from United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Meat Cutters v. Jewel Tea, 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965); Connell Co. v. Plumbers & Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975), and cognate cases.) See also McCourt v. California Sports, Inc., 600 F.2d 1193, 1197-98 (6th Cir.1979) adopting Mackey.

Plaintiff places great stress on the fact that he is a “non-veteran NBA player and was not within the bargaining unit represented by the defendant Players Association” (Plaintiff’s Memorandum at 17). He argues that “any condition relating to the wages of an unrepresented non-union member cannot be a mandatory subject matter of collective bargaining.” Id. at 19. What plaintiff is contending is that since he was not an NBA player when the union and owners reached agreement on the issues in contention here, that agreement cannot bind him. He cites no authority for that proposition, and indeed none can be found. To adopt plaintiff’s principle would turn federal labor policy on its head. The Players Association is the recognized exclusive bargaining agent for NBA players. Art. XXIII of the October 10, 1980 Agreement. At the time an agreement is signed between the owners and the players’ exclusive bargaining representative, all players within the bargaining unit and those who enter the bargaining unit during the life of the agreement are bound by its terms. J.I. Case Co. v. NLRB, 321 U.S. 332, 335, 64 S.Ct. 576, 579, 88 L.Ed. 762 (1944) (when an employee is hired after the collective bargaining agreement has been made, “the terms of [his] employment already have been traded out”); NLRB v. Laney and Duke Storage Warehouse Co., 369 F.2d 859, 866 (5th Cir.1966) (“[t]he duty to bargain is a continuing one, and a union may legitimately bargain over wages and conditions of employment which will affect employees who are to be hired in the future”).

Indeed the law could be no other way. The aim of federal labor policy is to promote peace in labor-management relations, not chaos and turmoil which adoption of plaintiff’s theory would produce. The Players Association has been acting as collective bargaining representative of NBA basketball players at least since the Robertson litigation commenced in 1970. It has bargained with owners on behalf of the players and has entered into a number of collective bargaining agreements binding the players including the agreement at issue here. The current agreement as to salary cap, college draft and ban on private player corporations is not due to expire until June 1, 1987. It is binding on plaintiff and all others now in the bargaining unit and all who hereafter enter the bargaining unit prior to the expiration date of the agreement — June 1, 1987.

The ban on private corporations is a part of the collective bargaining agreement. The ban on player corporations was agreed to in the words of Players Association General Counsel, because “[t]hese individual corporations created administrative entanglements and accounting difficulties for the benefit plans established and administered by the Players Association and the NBA.” (Affidavit of Laurence Fleisher at 13). The ban arguably affects the terms and conditions of employment and could, therefore, fit the definition of mandatory subject of bargaining. Even if outside that definition, however, the ban presents no antitrust issues. It is a restriction agreed to in labor-management negotiations to simplify the union and NBA task of administering player benefits. Even though it may have an adverse impact on some individuals in the bargaining unit, NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123, reh. denied, 389 U.S. 892, 88 S.Ct. 13, 19 L.Ed.2d 202 (1967), it is not the proper subject of attack in proceedings seeking relief from antitrust violations.

The applicable standard for a grant of preliminary injunctive relief in this circuit is an unequivocal establishment of irreparable injury and either (1) the likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and the balance of hardships tipping decidedly in favor of the party seeking relief. Jackson Dairy Inc. v. H.P. Hood & Sons, 596 F.2d 70 (2d Cir.1979). We need not tarry long in discussing this issue. Plaintiff cannot meet that test. Previous discussion clearly shows that there is no likelihood of plaintiff succeeding on the merits or of showing that he has raised sufficiently serious questions to warrant their being tested in further litigation. Moreover, the defendants are most at risk if injunctive relief is granted. The stabilization of the NBA financial status which the 1983 agreement sought to achieve would be undermined to the detriment of players and owners alike. Denial to plaintiff would only mean that he would have to negotiate with Philadelphia so that a contract can be produced under exceptions to the salary cap.

The most important basis for denial of preliminary relief, however, is that plaintiff has failed to show any irreparable harm. His complaint is about how much money he is to be paid for playing for Philadelphia. Money damages will adequately compensate him for whatever injury he has suffered. Such circumstances are not indicative of irreparable injury warranting preliminary relief. Id. at 72-73. The failure to show irreparable injury is fatal. Motion denied.

IT IS SO ORDERED.


source: Caselaw Access Project

author: DITTER, District Judge.

license: Public Domain

text:
    PUNNETT, Hope and Hinkie, Irene and Hinkie, Paul, a minor, by his parents, Howard E. and Irene Hinkie and Hinkie, Howard E., Administrator of the estate of Timothy Hinkie, deceased, Plaintiffs, v. UNITED STATES of America et al., Defendants.
    Civ. A. No. 79-29.
    United States District Court, E.D. Pennsylvania.
    Oct. 25, 1984.

      Paul N. Minkoff, Klovsky, Kuby & Harris, Herbert B. Newberg, Herbert B. New-berg, P.C., Philadelphia, Pa., for plaintiffs.
    Paul F. Figley, Robert C. Longstreth, Torts Branch, Civ. Div., U.S. Dept, of Justice, Robert L. Brittigan, Gen. Counsel, Defense Nuclear Agency, Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

DITTER, District Judge.

In this action plaintiffs seek an order compelling defendants to inform United States servicemen who participated in nuclear testing (“atomic vets”) of the resultant health risks. Specifically, plaintiffs seek a warning addressing an alleged increased risk of genetic defects, both in the vets and in their offspring. Presently before me is defendants’ motion to dismiss or stay the action. Undergirding the motion is plaintiffs’ failure to exhaust administrative remedies. For the reasons that follow, defendants’ motion will be granted and this action dismissed.

Soldiers “injured in the course of activity incident to service” cannot sue the United States government for damages. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Such suits are barred by the doctrine of sovereign immunity, and unlike many claims against the government, this immunity was not waived by the Federal Tort Claims Act. Id. In Feres, the Supreme Court recognized the need to grant military personnel broad discretion in their decision making process.

While the Feres doctrine, and its underlying reasoning, reflect a practical awareness of the exigencies of military command, its sometimes harsh results have been criticized. See, e.g., Heilman v. United States, 731 F.2d 1104, 1111-13 (3d Cir.1984) (Adams, J., concurring); Jaffee v. United States, 468 F.Supp. 632 (D.N.J.1979), aff'd 663 F.2d 1226 (3d Cir.1981) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). This criticism is especially acute where Feres bars recovery by those unable to receive compensation from the Veterans Administration. See Note, Pushing the Feres Doctrine a Generation Too Far: Recovery for Genetic Damage to the Children of Servicemembers, 32 Amer. U.L.Rev. 1039 (1983). Reflecting dissatisfaction with the harsh results obtained in these cases, and perhaps even a broader dissatisfaction with the Feres doctrine itself, courts have fashioned a “patchwork of exceptions.” Heilman v. United States, 731 F.2d at 1112 (Adams, J. concurring). All in all, this state of affairs has resulted in judicial precedent which does “not always appear logical or consistent.” Shearer v. United States, 723 F.2d 1102, 1108 n. 1 (3d Cir.1984) (Garth, J., dissenting).

One of the exceptions to the Feres doctrine is discussed in Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). In Jaffee, the plaintiffs sought to avoid the insurmountable hurdle of the 1950 Feres doctrine, by arguing that sovereign immunity had been waived when Congress enacted the 1976 amendments to the Administrative Procedure Act. In essence, they styled their complaint as one seeking review of agency action. Furthermore, as explained by Judge Rosenn, it was not one but two agency actions which were being challenged. The first agency action was the Army’s order mandating Jaffee’s presence at the atomic explosion. The second agency action was the Army’s failure in the years since the explosion to give a medical warning and provide medical care to Jaffee. Because Jaffee sought only medical care and not declaratory relief as to the first agency action, the Third Circuit found the claim barred by the Feres doctrine. However, insofar as Jaffee sought review of the Army’s failure to warn, the court found a cause of action available under the provisions of the Administrative Procedure Act.

After finding that the Army’s “failure to warn” stated a cognizable claim, the court discussed whether plaintiffs’ failure to present their claim initially to the appropriate agency foreclosed judicial review. Citing the “irreversible and perhaps fatal consequences” that could result from each day of delay, and the Army’s failure to warn despite both its knowledge of the hazards of radiation, and its awareness of Jaffee’s request for a warning, the court concluded judicial review was not barred “under the circumstances of this case.” Id. at 720. While these reasons appear to be established justifications for failure to exhaust administrative remedies, see Republic Industries, Inc. v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290, 293 (3d Cir.1982), the Jaffee court expressly stated that “the doctrine of administrative exhaustion has no application to this case.” Jaffee v. United States, 592 F.2d at 719 n. 16. Therefore, I will first address whether that doctrine applies to the case sub judice and secondly, I will discuss whether plaintiffs have satisfied one of its exceptions.

“The basic premises underlying the exhaustion requirement are that (1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors.” Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656, 659 (3d Cir.1973) rev’d on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). The first of these factors presents salient reasons for requiring exhaustion in this case. As defendants’ unopposed affidavit indicates, the Defense Nuclear Agency (DNA) has undertaken an extensive program developed to research the effects of radiation, both in general and as it applies to the specific Army operations in which soldiers were exposed. This information is being voluntarily disseminated to atomic vets. In fact, the DNA is making a concerted effort to contact atomic vets, supply them with relevant information, and encourage follow-up medical exams in Veterans Administration hospitals. The government has submitted to me volumes of information it has distributed, evidencing a level of expertise far surpassing anything this court could develop. See, e.g., Quigley v. Exxon Co., 376 F.Supp. 342 (M.D.Pa.1974). Additionally, the DNA is developing a record as to what should be contained in the warning plaintiffs seek. While doing so, the DNA is distributing the results of its studies; that is the DNA is distributing facts, although it may not be distributing conclusions from these facts as plaintiffs want. As I stated in my opinion denying preliminary injunctive relief, the harm which could result from an improvidently issued, conclusory warning, could be as devastating as no warning at all. See Pun-nett v. Carter, 621 F.2d 578, 587-88 (3d Cir.1980).

Turning to the second factor, I conclude judicial resources will be conserved by requiring exhaustion. Not only will exhaustion facilitate development of a factual record as discussed above, but it may very well moot the controversy if plaintiffs prevail in convincing the DNA of the soundness of their conclusions. Significantly, this is not a situation where the Army has flatly stated it would not voluntarily comply with the litigants’ request. See Garmon v. Warner, 358 F.Supp. 206 (W.D.N.C.1973). Rather, this case involves a situation where the Army, based upon its own research, without meaningful input from plaintiffs, simply disagrees with the conclusions plaintiffs have reached. Even more importantly, this case involves a situation dealing with detailed scientific data in a field which can only be characterized as in its infancy. Nothing indicates the DNA would refuse to distribute a warning satisfactory to plaintiffs if either plaintiffs’ research shows such a warning is proper or if further research evidences the soundness of plaintiffs’ position.

Finally, it bears notation that because of plaintiffs’ failure to request relief from the DNA, that agency has not had the benefit of plaintiffs’ research and advocacy. By mandating consolidation of efforts before one tribunal, any warning which issued would reflect a deliberate and fully informed scientific judgment based upon all the available scientific data. It would not be the decision of a jurist who was uninvolved in the underlying scientific research. This can only result in a more enlightened decision.

As to the third factor, it is evident that the Army should be permitted to continue, through the DNA, with its research, until well informed decisions can be reached. See Robinson v. Dow, 522 F.2d 855, 857 (6th Cir.1975). This conclusion is especially true in the case at bar because the decisions being challenged relate to the interaction between the military branches of our government and servicemen, an area traditionally placed off limits to the courts by the Feres doctrine.

After reviewing all the above, I conclude this case is distinguishable from Jaffee v. United States, 592 F.2d 712 (3d Cir.) cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), wherein exhaustion was found not to be a prerequisite to judicial review. Id. at 719 n. 16. Nothing in Jaffee suggests the parties advanced the pendency of DNA proceedings as a ground for requiring exhaustion. This is understandable since the DNA was just beginning its investigation at the time Jaffee was decided. Furthermore, because a warning has been issued by the DNA as a result of the Jaffee litigation, I am not presented with a clear cut refusal to act. Rather, plaintiffs’ complaint involves a closer case; that is whether the actions taken to date by the DNA amount to a refusal to act given the requests made by plaintiffs. For instance, it may very well be that the information already distributed by the DNA has given to atomic vets, in substance, the warning plaintiffs want, albeit without the exact words plaintiffs would choose.

Having concluded, at least initially, that the exhaustion doctrine should apply, I now address whether plaintiffs have met one of its exceptions.

In their brief plaintiffs rely on two independent exceptions to the exhaustion requirement. First, they claim judicial review is necessary to prevent irreparable harm. Secondly, they contend it would be futile to attempt exhaustion. See Republic Industries, Inc. v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290, 293 (3d Cir.1982). In Jaffee, the Third Circuit relied on a combination of these factors in finding “little purpose” in delaying judicial review until the plaintiffs first presented their claims to the Army. Plaintiffs in this case strenuously contend Jaffee is indistinguishable. However, for the reasons previously expressed, as well as those that follow, I must disagree.

Turning to irreparable injury, I find plaintiffs’ arguments unconvincing. At the time Jaffee was decided, the Army had not disseminated to atomic vets warnings about the possible dangers resulting from participation in nuclear testing. As a result of Jaffee, however, the Defense Nuclear Agency distributed such a notice to over 15,000 newspapers, radio stations and television stations. Almost 1,700 of these media outlets confirmed publication or broadcast of the notice. Therefore, Jaffee involved plaintiffs seeking notice where none-had been given, while this case involves plaintiffs who are dissatisfied with the notice given. Furthermore, defendants’ unopposed affidavit shows the DNA is actively investigating the effects of radiation exposure and disseminating the results of such investigation to atomic vets. This information is far more detailed than any notice plaintiffs could hope to disseminate. I can perceive no basis on which plaintiffs can claim the notice they seek will prevent any harm not already prevented by the full disclosures being made by the DNA program.

I likewise conclude plaintiffs have failed to show it would be futile to present their request to the appropriate agency. In Jaffee, the futility finding reflected the Army’s failure to act even though it had knowledge through its participation in the litigation, of the notice plaintiff sought. Since Jaffee the DNA has distributed voluminous information concerning radiation exposure and its effects. In addition the DNA is distributing information “fact sheets” as to specific nuclear testing programs. Even more importantly, defendants’ unopposed affidavit indicates that all those seeking information on the genetic effects on test participants are given the “latest scientific evidence.” While I recognize that the DNA is not distributing a notice containing the exact words plaintiffs desire, I am unable to conclude it would be futile for plaintiffs to present their case to the DNA.

As I have previously discussed, the DNA might immediately issue the warning plaintiffs seek if plaintiffs’ scientific data is convincing or the DNA might issue the warning after its own scientific studies are complete. Plaintiffs cannot claim their efforts would be futile simply because the DNA has not issued a warning due to incomplete, inconclusive evidence. Given the possible side effects of plaintiffs’ desired warning, such conduct on the part of the DNA can only be characterized as prudent. In sum, I feel the government has made a convincing showing that it is attempting to deal realistically with the problems faced by atomic vets.

For all the above reasons, I conclude plaintiffs’ complaint must be dismissed for failure to exhaust administrative remedies.

      . Without elaboration, the Jaffee court found all claims for medical care barred by sovereign immunity. For a discussion of the reasons why medical care damages are not available to atomic vets, even if they seek only those medical care damages allegedly necessitated by the Army’s failure to warn, see Heilman v. United States, 731 F.2d 1104 (3d Cir.1984).


author: FLANNERY, District Judge.

text:
    CITIZENS FOR ENVIRONMENTAL QUALITY, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.
    Civ. A. No. 83-3763.
    United States District Court, District of Columbia.
    Oct. 29, 1984.

      Eric R. Glitzenstein, Arlene E. Kanter, Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., and Charles Sheroke, Coeur d’Alene, Idaho, for plaintiff.
    Laura F. Einstein, U.S. Dept, of Justice, Washington, D.C., for defendant.
   MEMORANDUM

FLANNERY, District Judge.

This matter is before the court on the parties’ cross-motions for summary judgment on the issue of the availability of exemption 6 of the Freedom of Information Act to allow defendant United States Department of Agriculture to withhold results of a medical test administered by defendant, and on plaintiffs motion to reject the in camera affidavit submitted voluntarily by defendant. For reasons set forth below, defendant’s motion for summary judgment will be denied, and plaintiff’s motion for summary judgment will be granted. Plaintiff’s motion to reject the in camera affidavit will also be granted.

I. Background

By letter dated May 30, 1983, plaintiff Citizens for Environmental Quality (“CEQ”) requested copies of the results of all health tests which have been performed on Forest Service employees as well as any other data relative to health effects in connection with herbicide spraying in the Avery Ranger District of the Idaho Panhandle National Forest. CEQ’s request was denied by letter dated June 14, 1983, on the ground that it sought information of a “private, intimate nature” and thus was exempt from disclosure under exemption 6 of the Freedom of Information Act (FOIA). 5 U.S.C. § 552(b)(6). CEQ appealed that decision, requesting only results of health tests and removal of all details that would allow identification of the subjects, but the denial of access to the health test data was affirmed. Although the methodology used by the Forest Service in monitoring health effects of herbicide application was released, defendant asserted that the personal privacy of the single individual sampled in the Avery Ranger District test could not be protected by removing identifying details from the test results. The Forest Service also asserted that upon review of the methodology used, the results of the single urinalysis were meaningless. CEQ again appealed the action of the Forest Service regarding the health test results, but the denial was reaffirmed. Plaintiff commenced suit on December 16, 1983, and defendant filed its answer, on January 16, 1984.

The government contends that disclosure of the test results, even if the name of the tested employee is withheld, would constitute a “clearly unwarranted invasion of personal privacy” of the individual tested. Therefore, because the documents sought are medical records, the government argues that both requirements for nondisclosure under FOIA exemption 6 are satisfied. Defendant alleges that it is “publicly known” in the community where the herbicide spraying was conducted that the individual tested was a resident of Avery, Idaho. Therefore, because there were only eight Forest Service employees present during the herbicide application, only four of whom were residents of Avery, and only two of these individuals occupied the technical positions that exposed them to the herbicide, the identity of the employee tested could so readily be deduced from the facts widely known about the herbicide spraying that all identifying information pertaining to that employee as well as the actual health test results must be withheld to protect that individual’s privacy, as promised when the tests were conducted. The government further argues that the public interest in the test results is insignificant because the results are “virtually valueless” due to the methodology used, and because release of the test results could confuse the public given the public’s “tendency” to assume that a document made public by an agency reflects that agency’s official position.

Plaintiff argues that the government is merely speculating that the people of Avery know enough about the herbicide test to identify the subject, and that the “fragmented, circumstantial” evidence available to even those who are “intimately familiar” with the USDA’s herbicide program is insufficient to permit identification. Further, plaintiff argues that any risk of identification that does exist stems entirely from the government’s voluntary, post-litigation disclosure of information not sought by CEQ, such as the total number of Forest Service employees participating in the herbicide program and the residence of the subject of the test. Because the government is responsible for any risk of identification, plaintiff argues, defendant should not be allowed to argue that disclosure of nonidentifying information would create an invasion of privacy. Finally, CEQ claims that the public interest in the test results is significant, since valid inferences regarding the effects of herbicide spraying can be made from the results, despite any methodological defects. Further, even if the results really are “meaningless,” as defendant asserts, CEQ argues that the public has an interest in learning that defendant is not abiding by its alleged commitment to effectively monitor the health effects of herbicide spraying.

Among the affidavits submitted in support of the pending motions for summary judgment was an in camera affidavit from the subject of the herbicide test, which was submitted voluntarily by defendant. Plaintiff argues that the court should not consider this affidavit because it was submitted without permission, is unnecessary to resolution of the issues, and frustrates the adversary process. Defendant asserts that the in camera affidavit provides valuable facts to assist the court in its de novo review.

Both parties have moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Plaintiff claims that it is entitled to the health test results as a matter of law under the Freedom of Information Act. Defendants argue that exemption 6 of FOIA justifies nondisclosure of the health test results as a matter of law. Plaintiff has also moved for rejection of the in camera affidavit.

II. Discussion

A. Summary judgment

A motion for summary judgment is properly granted only when no material fact is genuinely in dispute and the movant is entitled to prevail as a matter of law. In assessing the motion, all inferences to be drawn from the underlying facts contained in the movant’s materials must be viewed in the light most favorable to the party opposing the motion. “Indeed, ‘the record must show the movant’s right to [summary judgment] “with such clarity as to leave no room for controversy,” and must demonstrate that his opponent “would not be entitled to [prevail] under any discernible circumstances.” ’ ” National Ass’n of Gov’t Employees v. Campbell, 593 F.2d 1023, 1027 (D.C.Cir.1978).

Summary judgment must be denied if it depends upon any fact that the record leaves susceptible of dispute. Id. A party opposing summary judgment is required to proffer rebuttal evidence only if its omission enables the movant to satisfy his burden of showing that no meaningful issue of material fact remains. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1609-10, 26 L.Ed.2d 142 (1970); Davis v. Chevy Chase Financial Limited, 667 F.2d 160, 172 (D.C.Cir.1981). The court’s function at this stage is not factfinding or the resolution of factual issues pertinent to the controversy, but rather to ascertain whether factfinding is essential to disposition of the litigation. Campbell, 593 F.2d at 1027, 1029. It is in light of these admonitions that the court reviews the pending motions for summary judgment.

B. Exemption 6

Under exemption 6 of the Freedom of Information Act, an agency need not disclose “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). When confronted with a challenge to an agency’s decision to withhold records under this exemption, courts must engage in a two-step de novo inquiry to determine first whether the information sought is to be found in personnel, medical, or similar files, and, if so, whether its release would constitute a “clearly unwarranted invasion of personal privacy.” Arieffv. United States Dep’t of the Navy, 712 F.2d 1462, 1466 (D.C.Cir.1983); Washington Post Co. v. United States Dep’t of Health and Human Services, 690 F.2d 252, 260 (D.C.Cir.1982). The first inquiry need not detain us here, as the parties are in agreement that the information sought by plaintiff is contained in “personnel, medical, or similar files.” See Defendant’s Statement of Material Facts as to Which There is No Genuine Issue, Pursuant to Local Rule 1—9(i) at 1111; Plaintiff’s Response to Defendant’s Statement of Material Facts as to Which There is No Genuine Issue at ¶ 11.

In resolving the second inquiry under exemption 6, whether disclosure would constitute a “clearly unwarranted invasion of personal privacy,” the court is required to balance the public interest in disclosure against privacy interests, keeping in mind Congress’ “dominant objective” under FOIA to provide full disclosure. Washington Post Co. v. United States Dep’t of Health and Human Services, 690 F.2d at 260. FOIA’s requirement that disclosure be “clearly unwarranted” instructs the court to “tilt the balance [of disclosure interests against privacy interests] in favor of disclosure,” recognizing that the presumption in favor of disclosure under exemption 6 “is as strong as can be found anywhere in the Act.” Id. at 261.

Balancing the public interest in disclosure against privacy interests involves three steps. First, the court determines whether disclosure would create an invasion of privacy at all, and, if so, how serious. It then evaluates the public interest in disclosure. Finally, these competing interests are balanced to decide whether the invasion is “clearly unwarranted.” Id. Regarding the extent of any privacy invasion, defendant urges that the promise of confidentiality made to the subject of the urinalysis weighs heavily against disclosure. Defendant’s Motion for Summary Judgment at 12. While such a pledge is clearly not dispositive on the question- of whether disclosure would create an invasion of privacy, and, if so, the extent of that invasion, the court recognizes that a “good faith pledge of confidentiality should generally be given weight on the privacy side of the scale in accord with its effect on expectations of privacy.” Id. at 268.

To establish the existence and extent of any invasion of privacy created by disclosure in this ease, defendant must first show that the public would be able to link the disclosures requested by plaintiff with the subject of the USDA’s health tests. It is clear that the likelihood of such identification must be “more palpable than [a] mere possibility].” Department of the Air Force v. Rose, 425 U.S. 352, 362, 380, 96 S.Ct. 1592, 1599, 1608, 48 L.Ed.2d 11 (1976). Rather, the exemption applies only if the government’s records on the medical condition of the subject of the USDA’s test “can be identified as applying to that individual ....” Id. at 380 n. 19, 96 S.Ct. at 1608 n. 19 (emphasis by the Court). An increased likelihood of speculation as to the subject of the test is insufficient to invoke the exception. Only the likelihood of actual identification justifies withholding the requested documents under exemption 6. Arieff v. United States Dep’t of the Navy, 712 F.2d 1462, 1468 (D.C.Cir.1983).

Defendant offers several affidavits to support its contention that the subject of the USDA tests is identifiable and thus that disclosure of the test results would result in an invasion of his privacy. These affidavits are not, however, sufficient to sustain the government’s burden under exemption 6 of showing that the test results can be identified to an individual. Although one of defendant’s affiants, an employee of USDA, states that the circumstances surrounding the herbicide testing were “publicly known,” and thus that the identity of the employee tested for exposure “could be ... readily deduced,’!- Hart Affidavit at 11 6, the basis for these conclusory statements is never offered. A second affiant, also a USDA employee, states that he was told by the employee who was tested that “several, people have asked him whether he was the employee tested” and that “speculation” has focused on two individuals. Thom Affidavit at ¶ 8. However, the government has failed to submit affidavits from any members of the community who are allegedly able to identify the employee tested. See Plaintiff’s Reply Memorandum in Support of its Motion for Summary Judgment and in Opposition to Defendant’s Motion for Summary Judgment at 6. Indeed, the government now contends that it “is not attempting to establish that every person, or any one person, in the Avery, Idaho community knows the identity of the individual who underwent the tests. Defendant asserts only that, given the circumstances surrounding the spraying, some residents of Avery could logically deduce this individual’s identity.” Memorandum of Points and Authorities in Further Support of Defendant’s Motion for Summary Judgment at 5 (emphasis in original). Nor has defendant supplied evidentiary details to support its conclusion that knowledge of the circumstances surrounding the tests was public prior to the USDA’s post-litigation disclosures. See Hart Affidavit at 11 6.

Although an agency may satisfy its burden of demonstrating that requested documents fall under an exemption to FOIA by providing affidavits, it is well-settled that “conclusory allegations unsupported by factual data will not create a triable issue of fact.” Exxon Corp. v. Federal Trade Comm’n, 663 F.2d 120, 126-27 (D.C.Cir.1980). Under FOIA, defendant has the burden of showing affirmatively the applicability of any exemption it seeks to assert, see id. at 126, with the burden under exemption 6 as heavy as can be found anywhere in the Act. See Washington Post Co. v. United States Dep’t of Health and Human Services, 690 F.2d at 261. Instead, defendant claims that plaintiff’s alleged failure to prove that facts identifying the individual tested were not known to the general public requires the conclusion that there is no genuine issue of material fact as to what was publicly known, and thus that summary judgment for defendant is proper. See Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment and in Further Support of Defendant’s Motion for Summary Judgment at 4 & n. 2; see also Memorandum of Points and Authorities in Further Support of Defendant’s Motion for Summary Judgment at 5. This position misconstrues both the government’s general burden under FOIA and the movant’s burden under a motion for summary judgment. See Davis v. Chevy Chase Financial Limited, 667 F.2d 160, 172 (D.C.Cir. 1981); Weisberg v. United States Dep’t of Justice, 627 F.2d 365, 368 (D.C.Cir.1980); Campbell, 593 F.2d at 1029. USDA’s affidavits, alleging what was “commonly known” about the USDA employees engaged in herbicide application and the resulting “speculation” surrounding the identity of the employee tested, are either too conclusory to create a triable issue of fact for this court to decide or allege only speculation and possibilities which the Supreme Court and the Court of Appeals for the D.C. Circuit have held to be insufficient to invoke exemption 6 as a matter of law. See Rose, 425 U.S. at 380, 96 S.Ct. at 1608; Arieff, 712 F.2d at 1468. Plaintiff, on the other hand, has come forth with affidavits asserting from the personal knowledge of the affiants, who were residents of the Avery, Idaho area and deeply interested in the USDA’s herbicide application program, that they could not identify the subject of the tests from available information and that they knew of no one who could. See Hoglund Affidavit at ¶ 3; Dickison Affidavit at ¶¶ 3, 4.

Based on the court’s holding that defendant’s affidavits failed to withstand plaintiff’s motion for summary judgment on the issue of whether disclosure will create a danger of invasion of privacy at all, it is not necessary for the court to resolve the balance between any invasion of privacy and the public’s interest in disclosure. See Washington Post Co. v. United States Dep’t of Health and Human Services, 690 F.2d at 261. Nevertheless, the court is compelled to point out that despite any “potential” methodological flaws in the health tests administered by USDA, defendant has failed to controvert plaintiff’s expert’s contention that valid inferences regarding the effects of herbicide spraying can be made from the results. While it may be “possible” that the individual tested was exposed to the chemicals found in his urine prior to the spraying administered by USDA, thus rendering the results less valuable if not useless, whether or not the subject of the test was in fact exposed to those chemicals in the week prior to the test is information uniquely within the possession of the government. See Witt Affidavit at 118; Shearer Affidavit at 3. Similarly, the effect of such variables as the subject’s general health or medicines he was taking may render the test results less useful, but defendant again has failed to assert any facts upon which the court could conclude that the individual tested in fact had a health problem or was taking medicines which would skew the test results. See Witt Affidavit at 117. Therefore, although methodological defects may preclude broad generalizations on the basis of this test, and although the results possibily may not be the most accurate basis for estimating the precise exposure to which the individual was subjected, see Witt Affidavit at 11 ¶ 3, 6, the government has failed to controvert plaintiff’s contention that valid inferences from the test results may nonetheless be possible. In this light, defendant’s assertion that release of the test results could “confuse or mislead” the public given the public’s “tendency” to equate release of such tests with official validation of their results, see Defendant’s Motion for Summary Judgment at 11-12, is particularly unpersuasive. The purpose of FOIA is to provide for disclosure of government documents so that the public may draw its own conclusions. See Washington Post Co. v. United States Dep’t of Health and Human Services, 690 F.2d at 264. In passing FOIA, “Congress was all too aware of the ‘[innumerable times’ that agencies had withheld information under prior law ‘only to cover up embarrassing mistakes or irregularities.’ ” Id. Even if the government had not made a specific commitment to monitor the spraying of this particular herbicide in this particular location as plaintiff alleges, the fact that USDA performed these tests and obtained results is of obvious interest to residents of the area in which the spraying took place. As to the methodological problems and any inferences to be drawn from these tests, this court prefers, and FOIA mandates, that those conclusions be left to the public.

C. Plaintiff’s motion to reject defendant’s in camera affidavit.

Finally, the court holds that it is unnecessary for it to consider defendant’s in camera affidavit to evaluate the validity of the government’s assertion of exemption. The court finds that the in camera affidavit of the Forest Service employee who consented to the urinalysis is not “absolutely necessary” to evaluate the government’s claim that citizens in Avery know enough of the facts surrounding the herbicide testing to identify the subject of the test. See Arieff v. United States Dep’t of the Navy, 712 F.2d 1462, 1471 (D.C.Cir.1983). Implicit in this holding is the court’s opinion that the validity of the government’s assertion of exemption can be evaluated with information contained in public affidavits and records, and that the usefulness of the opinions of the subject of the test does not rise to the level required to justify in camera submission. See Arieff, 712 F.2d at 1471; Public Citizen Health Research Group v. United States Dep’t of Labor, 591 F.2d 808, 809 (D.C.Cir.1978) (per curiam).

D. Conclusion

For these reasons, the court holds that the allegations in defendant’s affidavits have failed to create a triable issue of fact for this court to decide. In light of the heavy burden on the government under exemption 6, and the government’s failure to submit facts creating more than a “mere possibility of identification or to controvert plaintiff’s assertion of the public’s interest in the documents sought, the court shall deny defendant’s motion for summary judgment and grant plaintiff’s motion for summary judgment. Defendant shall release to plaintiff copies of the results of health tests performed on the Forest Service employee involved in the 1982 herbicide project in the Avery Ranger District which have been withheld by defendant pursuant to exemption 6 of the Freedom of Information Act. Defendant shall be permitted to delete the name of the employee tested and other similar identifying details. Plaintiff’s motion to reject defendant’s in camera affidavit shall be granted.

An appropriate Judgment accompanies this Memorandum.


author: HORACE T. WARD, District Judge.

text:
    Gordon C. BRAZIER, Jr., Plaintiff, v. TRAVELERS INSURANCE COMPANY, Defendant.
    Civ. A. No. C84-1550A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Nov. 2, 1984.

      J. Calloway Holmes, Jr., Cedartown, Ga., for plaintiff.
    Bryan F. Dorsey, Atlanta, Ga., for defendant.
   ORDER OF COURT

HORACE T. WARD, District Judge.

This is an action- alleging fraud, deceit, conversion, abuse of process, intentional infliction of emotional distress, and/or misrepresentation arising out of defendant’s cessation and withholding of plaintiff’s workers’ compensation benefits. The defendant has moved to dismiss this action pursuant to Rule 12(b)(6), contending that plaintiff has failed to state a claim upon which relief can be granted. The gist of defendant’s argument is that the Georgia workers’ compensation system, as administered by the State Board of Workers’ Compensation, provides the exclusive remedy for plaintiff’s claim and that resort to this court is improper. This case raises important questions of law which the courts of the state of Georgia have not as yet addressed. For the reasons which follow, the court has concluded that defendant’s motion to dismiss must be DENIED.

BACKGROUND

Defendant Travelers Insurance Company (“Travelers”) is the workers’ compensation carrier for Goodyear Tire and Rubber Company (“Goodyear”). The plaintiff, Gordon C. Brazier, was formerly employed by Goodyear. In December 1981, while working for Goodyear in its Cedartown, Georgia plant, Brazier sustained a work-related injury. Thereupon Travelers began paying $115.00 weekly compensation to the plaintiff as disability benefits without the necessity of an award by an administrative law judge for the State Board of Workers’ Compensation or any settlement of the claim.

In September 1982, a portion of plaintiff’s benefits were garnished, pursuant to a “continuing garnishment” proceeding, to satisfy a judgment against him. Travelers was ordered by the Superior Court of Polk County (Georgia) to pay one half of plaintiff’s workers’ compensation benefits payable between August 13 and September 21, 1982 into the court to be applied to a judgment for alimony or child support against plaintiff and in favor of his former wife. Travelers paid the remaining one-half of the weekly benefits ($57.50) to the plaintiff. Apparently, this arrangement (one-half of plaintiff’s benefits to the Polk County Court and one-half to plaintiff) continued until June 1983. In July 1984, plaintiff filed this action in the Superior Court of DeKalb County (Georgia). Travelers subsequently removed the case to this court and filed its motion to dismiss.

In his complaint, plaintiff alleges several claims, each sounding in tort, arising out of the alleged wrongful “reduction” of his workers’ compensation benefits by the defendant. Plaintiff claims that defendant wilfully failed, in its fiduciary duty to him, to file a proper response and raise available defenses to the garnishment proceedings. Complaint at ¶ 4. Plaintiff further alleges that, even if his workers’ compensation benefits were the proper subject of a continuing garnishment, Travelers intentionally continued to withhold and convert half of his weekly benefits beyond the expiration of the 179-day limit on continuing garnishment imposed by statute. Complaint at 1111 7-9. Moreover, plaintiff claims, defendant “abused the process of Polk Superior Court by serving a copy of the [garnishment] Order of September 21, 1982 on the plaintiff on February 15, 1983 as a fraudulent misrepresentation of lawful justification for continuing to withhold his lawful monies from him.” Complaint at ¶ 9. Finally, plaintiff alleges that defendant’s' intentional misconduct caused plaintiff to suffer emotional distress and placed him in such a detrimental financial position that he was subject to foreclosure proceedings. Complaint at 1111. Plaintiff seeks $2,357.50 for reimbursement of the amount withheld and $100,000 for exemplary damages. Complaint at ¶¶ 10,13. Defendant’s motion to dismiss raises the issue of whether the Georgia workers’ compensation statute provides the sole remedy for intentional tortious conduct arising out of the cessation or withholding of workers’ compensation by a compensation insurer or whether such a claim may be prosecuted as a common law tort action.

DISCUSSION

I.

The Georgia Worker’s Compensation Act, O.C.G.A. § 34-9-1 et seq., is “the Georgia statutory scheme which provides compensation to employees who are the victims of work related injury, disease or death.” 29 Encyclopedia of Georgia Law, Workers’ Compensation § 1 (1980). Like workers’ compensation acts throughout the country, the Georgia statute represents an important historic compromise: the employee has given up her right to sue at common law for workplace injury, and the employer has given up her right to assert various common law defenses. The Act provides, in relevant part:

The rights and the remedies granted to an employee by [the Workers’ Compensation Act] shall exclude all other rights and remedies of such employee ...; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than ... any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the insured employee and the person providing the benefits.

O.C.G.A. § 34-9-11. The Georgia act, then, is designed to provide the exclusive remedy against an employer for injuries by accident arising out of and in the course of employment. Allied Chemical Corp. v. Peacock, 151 Ga.App. 278, 259 S.E.2d 681 (1979). The Workers’ Compensation Act, thereby bars all suits at common law brought by an employee against her employer for workplace accidents covered by the terms of the statute. A court of law simply does not have jurisdiction over claims which are covered by the provisions of the workers’ compensation law because an injured workers’ remedies are limited to those set forth in the detailed provisions of the Act. The question raised by the instant case is whether a workers’ compensation insurance carrier which engages in conduct which rises to the level of actionable fraud, deceit, misrepresentation, abuse of process, intentional infliction of emotional distress and/or conversion in regard to the withholding of compensation benefits which it was obligated to pay and had been paying, may be sued at law, or whether the exclusive remedy for injury caused by such conduct is in accordance with the statutory remedy provided in the Workers’ Compensation Act.

Defendant Travelers was the Goodyear Tire and Rubber Company’s compensation insurer at all times relevant to the facts giving rise to the instant claim. It did not act in any capacity in its relationship with Goodyear other than to provide workers’ compensation insurance to the employer. Nothing in the complaint or plaintiff’s response to defendant’s motion to dismiss indicates otherwise. In Georgia, a workers’ compensation insurer enjoys the same immunity from common law tort action as the employer. See O.C.G.A. § 34-9-1(3); Sims v. American Casualty Co., 131 Ga.App. 461, 206 S.E.2d 121, aff'd sub nom. Providence Washington Ins. Co. v. Sims, 232 Ga. 787, 209 S.E.2d 61 (1974). In order for the instant action against this insurer to be maintainable, then, it must be found that plaintiff is seeking redress for an injury which falls outside the scope of the Workers’ Compensation Act and therefore is not subject to the bar to common law action imposed by O.C.G.A. § 34-9-11.

It is, of course, axiomatic that “[t]he exclusivity of the Act is irrelevant to causes of action which are not covered by it.” Reed v. Hartford Accident & Indemnity Co., 367 F.Supp. 134, 135-36 (E.D.Pa.1973). To a large extent, the scope of the exclusive remedy in Georgia is governed by O.C.G.A. § 34-9-1(4), the pertinent portion of which defines injury compensable under the Act as “injury by accident arising out of and in the course of the employment.” The term “accident” has been held to encompass intentional torts. See Burbank v. Mutual of Omaha Ins. Co., 484 F.Supp. 693 (N.D.Ga.1979), aff'd, 616 F.2d 565 (5th Cir.1980); Southern Wire & Iron, Inc. v. Fowler, 217 Ga. 727, 124 S.E.2d 738 (1962). However, not every injury, much less every intentional tort committed by an employer against an employee, is necessarily covered by the terms of the Act. See Smith v. Rich’s Inc., 104 Ga.App. 883, 123 S.E.2d 316 (1961) (employee’s action against employer for false imprisonment not barred by compensation statute); Skelton v. W.T. Grant Co., 331 F.2d 593 (5th Cir.1964) (employee’s action against employer for false arrest and illegal detention not barred by Georgia Workmen’s Compensation Act).

An injury by accident compensable through workers’ compensation must “arise out of” the employment. This means that there must be some appropriate causal connection between the employment and the injury. See Helton v. Interstate Brands Corp., 155 Ga.App. 607, 271 S.E.2d 739 (1980); State Dept. of Labor v. Yates, 131 Ga.App. 71, 205 S.E.2d 36 (1974). In addition to this causal connection, an independent requirement is that the compensable injury must “arise in the course of” the employment. This requirement is understood to refer to the time, place, and circumstances of the injury; an accident arises in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of her duties and while she is fulfilling those duties. See New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 682, 118 S.E. 786 (1923).

II.

There is no case in Georgia which addresses the question of whether an injury caused by intentional termination or disruption of the payment of compensation benefits by an insurer is actionable despite the exclusive remedy provision of the Act. In Stafford v. Westchester Fire Ins. Co. of N.Y., Inc., 526 P.2d 37 (Alaska 1974), the plaintiff alleged that the insurance carrier did more than delay payment of his workers’ compensation benefits; he alleged, just as the plaintiff does here, that the carrier intentionally and maliciously misled him about his right to compensation and discouraged him from exercising that right, resulting in emotional injury. The Supreme Court of Alaska became the first court to hold that where there is intentional tortious conduct by a workers’ compensation carrier which goes beyond the bounds of untimely payments, the immunity from suit provided by the workers’ compensation law is lost. Id. at 43-44.

Several states have followed the lead of the Alaska court. See 2A Larson, Workmen’s Compensation Law § 68.34(c) at 13-74 n. 49.20 (1983) (collecting cases). In Coleman v. American Universal Insurance Co., 86 Wis.2d 615, 273 N.W.2d 220 (1979), the Supreme Court of Wisconsin, after noting that the principle of exclusivity of the workers’ compensation remedy is firmly entrenched in Wisconsin law, concluded that the state workers’ compensation act does not bar a common law action against a compensation insurer for the intentional tort of bad faith for failure to honor or pay a compensation claim. The court reasoned that the injury sustained by the plaintiff-worker due to the alleged bad-faith conduct of the defendants did not meet the statutory definition of a compensable injury:

Moreover, the event — the alleged intentional and malicious withholding of compensation payments — which caused the injury did not arise out of the employment but occurred long after the employment had ceased and had its genesis in conduct by the insurer that arose not out of the employment but out of the contractual obligation of the insurer to pay.
The injury for which remedy is sought in the instant case is the emotional distress and other harm caused by the defendants’ intentional acts during the investigation and during the course of payment of the claim. This claimed injury was distinct in time and place from the original on-the-job physical injury which was subject to the Compensation Act. The injury for which recovery is sought in the present actions did not occur while the plaintiff was employed or while he was performing services growing out of and incidental to his employment. As the plaintiff repeatedly and correctly stresses in his brief, this action is based not on the original work-related injury but on a second and separate injury resulting from the intentional acts of the insurer and its agents while investigating and paying the claim. The Act does not cover the alleged injury, and the exclusivity provision does not bar the claim.

273 N.W.2d at 223 (emphasis added). The court went on to reject, as spurious, the argument that the second injury (arising from the intentional withholding of benefits) should be reviewed as merely an extension or aggravation of the prior work-related injury as such reasoning “relies on an extended ‘but for’ analysis that leads to preposterous results.” Id. at 223.

In Gibson v. National Ben Franklin Ins. Co., 387 A.2d 220 (Me.1978), the plaintiff brought suit against her employer’s workers’ compensation carrier seeking damages that she claimed resulted from its termination of benefit payments, including payment of medical expenses. The defendant insurer asserted that dismissal of the claim was required because the Maine Workmen’s Compensation Act provided an exclusive remedy. The Supreme Judicial Court of Maine, after noting that under the Maine compensation statute (just as under the Georgia law) an “employer” includes the employer’s compensation carrier for most purposes, concluded that the insurer’s argument was not persuasive. In reasoning similar, to that put forth by the Court in Coleman, the Gibson Court pointed out:

the case arises not out of appellant’s original employment relationship but out of her relationship to the insurance carrier after her basic remedies as an injured employee had been settled through procedures provided by the Act. The severe mental distress she alleges as the injury resulting from appellees’ actions was not an injury “arising out of the employment” within the meaning of the Act. Her complaint may be deemed to allege that appellant had pursued her remedies under the Act and that the appellees had willfully deprived her of the benefits she had become entitled to under an approved compensation agreement. The status she asserts is not that of employee seeking a remedy against her employer but of a compensation claimant with established remedial rights.

387 A.2d at 222 (emphasis added).

In other cases raising the issue after Stafford, and perhaps the majority of such cases, for one reason or another, a cause of action was held not to lie. See 2A Larson, supra, § 68.34(c) at 13-72 n. 49.19 (collecting cases). In Sandoval v. Salt River Project Agricultural Improvement & Power District, 117 Ariz. 209, 571 P.2d 706 (Ariz.App.1977), the Court of Appeals of Arizona held that “where the essence of the claim is the alleged wrongful deprivation of benefits, the Industrial Commission (Arizona’s equivalent of Georgia’s State Board of Workers’ Compensation) has the exclusive jurisdiction to adjudicate that controversy.” 571 P.2d at 712. Although the complaint alleged, among other things, intentional breach of fiduciary duty, false representations, outrageous conduct, and intentional infliction of mental suffering, the court specifically rejected the conclusion of the Alaska Supreme Court in Stafford “as contrary to the basic philosophy” of the Arizona workers’ compensation system. Id. However, it should be noted that the Sandoval court never considered the rationale upon which the Wisconsin and Maine courts concluded that their states’ workers’ compensation statutes would not prevent a common law tort action under the facts alleged. Similarly, in Young v. United States Fidelity & Guaranty Co., 588 S.W.2d 46 (Mo.App.1979), the Missouri Court of Appeals reached the same conclusion, refusing to permit a tort action, chailenging the insurer’s alleged bad faith refusal to pay further compensation benefits. The Missouri court, however, seems to have rested its conclusion in large part on several features of the Missouri Workmen’s Compensation Act not present in Georgia law. Id. at 48.

III.

While the court recognizes the vital purpose of the Workers’ Compensation Act and the important role played by the exclusivity concept in effectuating the statute’s remedial goals, the court is persuaded by the reasoning of the Stafford, Coleman, and Gibson courts that intentional tortious conduct related to the disruption of the payment of workers’ compensation benefits neither “arises out of” nor “arises in the course of” the employee’s employment within the meaning of those phrases in the Georgia Workers’ Compensation Act. A noted commentator has pointed out that “cases involving allegations of deceit, fraud, and false representation can best be sorted out by distinguishing those in which the deceit precedes and helps produce the injury, and those in which the deceit follows the injury and produces a second injury or loss.” 2A Larson, supra, § 68.32 at 13-45. Plaintiff’s allegations in the instant case place it squarely among the latter type of case wherein the exclusive remedy provision generally presents less of an obstacle to the maintenance of a common law tort action.

Injury caused by conduct such as that alleged in the instant case cannot be said to “arise out of” employment because the causal connection to the workplace accident is unduly attenuated. Unless causation-in-fact is to be extended beyond any reasonable limit contemplated by the concept, it cannot be said that injury caused by the intentional conduct of a compensation carrier subsequent to a workplace accident, conduct alleged to involve fraud, misrepresentation, or intentional infliction of emotional distress, realistically constitutes “injury by accident arising out of ... the employment.” Moreover, the conduct by the defendant which plaintiff complains of and the resulting injury herein alleged cannot be said to have occurred “in the course of” employment as the time, place and circumstances of plaintiff’s alleged injury by misrepresentation exhibit no connection to his work at Goodyear. In fact, the alleged misrepresentation which forms the basis of plaintiff’s claimed injury came about more than one month after plaintiff’s employment with Goodyear was terminated and therefore cannot realistically constitute “injury by accident arising ... in the course of the employment.”

IV.

Although defendant did not argue that the “penalty provision” in Georgia’s Workers’ Compensation Act, O.C.G.A. § 34-9-221, requires this court to conclude that the legislature adequately provided a remedy for the wrongs alleged by plaintiff, this court will address the argument, as it has been, at least in part, the basis for court decisions in other jurisdictions denying the relief claimed by plaintiff in the instant case. See, e.g., Hicks, supra, 33 Ill.Dec. 686-687, 397 N.E.2d at 19-20. The relevant statutory provisions regarding payment of workers’ compensation benefits read as follows:

(a) Income benefits shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability is controverted by the employer.
(b) The first payment of income benefits shall become due on the fourteenth day after the employer has knowledge of the injury or death, on which day all income benefits then due shall be paid____
(c) If any income benefits payable without an award are not paid within 14 days after becoming due, there shall be added to the accrued income benefits an amount equal to 15 percent thereof, which shall be paid at the same time as, but in addition to, the accrued income benefits unless notice is filed under subsection (d) of this Code section or unless this nonpayment is excused by the board after a showing by the employer that owing to conditions beyond control of the employer the income benefits could not be paid within the period prescribed.
(j) The board or any administrative law judge shall issue such orders as may be necessary to enforce the penalty provisions of this Code section.

O.C.G.A. § 34-9-221. See also, O.C.G.A. § 34-9-108(b)(2) (authorizing State Board of Workers’ Compensation to award attorneys’ fees and costs to enforce rights under § 34-9-221 where employer has failed to comply without reasonable grounds). Termination of benefits due a claimant without reason has been held to justify the imposition of a 15% penalty assessment by the State Workers’ Compensation Board on the overdue benefits under § 34-9-221(e). See Sadie G. Mays Memorial Nursing Home v. Freeman, 163 Ga.App. 557, 295 S.E.2d 340 (1982).

Initially, it should be noted that when a penalty has been built into a compensation act to cover employer misconduct, the boundaries of the general exclusivity principle are often expanded to take in that conduct. See Larson, supra, § 69.30 at 13-130. Inspite of this general approach, in each case relied on above permitting a cause of action for tortious conduct related to the withholding of compensation benefits, the court held that the action could be maintained notwithstanding a penalty provision which would apply to the circumstances before the court.

Thus, in Stafford, the Alaska court held that the penalty provision for failure to pay (a provision strikingly similar to that in O.C.G.A. § 34-9-221) does not provide the sole remedy available to an employee where the tortious conduct involved goes beyond the bounds of untimely payments. 526 P.2d at 43-44. Likewise, in Coleman, the Wisconsin Supreme Court expressed the view that “a [statutory] penalty for delayed worker’s compensation payments does not preclude a cause of action for the intentional tort of bad faith for failure to honor or pay the claim,” and held that the penalty provision did not bar the additional remedy at common law for intentional wrongdoing which goes beyond the mere late payment of benefits. 273 N.W.2d at 224.

The Georgia courts have not interpreted O.C.G.A. § 34-9-221 in the circumstances of the facts alleged in the instant case. In Sadie G. Mays Memorial Nursing Home v. Freeman, supra, the Georgia Court of Appeals did not address the issue of whether the availability of statutory penalties would preclude a compensation claimant from obtaining relief through a common law action for intentional tortious conduct related to the nonpayment of benefits. Finding the reasoning of the Stafford and the Coleman courts to be persuasive, this court is of the view that the Georgia penalty provision will not preclude plaintiff from maintaining his claim for damages. Much of this conclusion, of course, is properly intertwined with the view that plaintiff’s claim, being one for intentional wrongdoing and not for compensation, is not controlled by the provisions of the state workers’ compensation act in the first place.

CONCLUSION

The court has given careful consideration to defendant’s argument that the provisions of the Georgia Workers’ Compensation Act, O.C.G.A. §§ 34-9-1 et seq., preclude the plaintiff from pursuing an action at law for injury arising out of alleged misrepresentations and/or other intentional misconduct in connection with the payment and withholding of workers’ compensation benefits by a compensation insurer. The courts of Georgia have not yet addressed the important issues raised by this litigation. In the absence of such guidance, this court should not construe the Georgia statute as being designed to deprive an employee of any common law action which she might otherwise have against her “employer,” unless the action which she seeks to assert is one for an injury as to which relief has actually been granted under the compensation laws. Skelton, 331 F.2d at 595. Thus, where, as here, the alleged intentional wrongdoing and injury arises not out of employment or in the course of an ongoing employment relationship but instead arises subsequent to and independent of any employment relationship, a claim which seeks to redress such injury is not barred by the Georgia workers’ compensation laws. Accordingly, defendant’s motion to dismiss for failure to state a claim upon which relief can be granted (or for lack of subject matter jurisdiction) is hereby DENIED.

      . Although cast as a motion to dismiss under 12(b)(6) for failure to state a claim upon which relief can be granted, defendant’s arguments that the state workers’ compensation system provides the plaintiff with the sole remedy for his claims and that the plaintiff has therefore failed to exhaust his administrative remedies indicate to the court that defendant’s motion is probably better brought pursuant to Rule 12(b)(1). The defendant does not, at this point, challenge the legal sufficiency of plaintiffs tort claims themselves; rather defendant argues that this court is without jurisdiction to adjudicate a cause of action sounding in tort against a workers’ compensation insurance carrier based on a failure to pay benefits as alleged in the instant case. In other words, defendant argues that remedy for plaintiffs claim lies elsewhere. Accordingly, the motion will be treated as a motion to dismiss for lack of subject matter jurisdiction.
      In a supplemental brief in opposition to defendant’s motion to dismiss, plaintiff has brought to the court’s attention an order of the court in the case of Goble v. United States Fidelity and Guaranty Co., Civil Action No. 582-39 (S.D.Ga. June 21, 1983). In that case, Judge Alaimo held that the deliberate failure to pay workers’ compensation benefits may give rise to a right of action in tort. The motion to dismiss under consideration in the instant case does not assert that plaintiffs claims do not state a cause of action in tort. Therefore, the court expresses no opinion as to that issue.

      . In a continuing garnishment proceeding a judgment creditor may obtain garnishment against any garnishee who is an employer of the person against whom the judgment has been obtained. O.C.G.A. §§ 18-4-110 et seq. All debts owed by the employer-garnishee to the employee at the time of service of summons of continuing garnishment upon the garnishee and all debts accruing from the employer to the employee (i.e., wages) from such date of service to and including the one hundred and seventy-ninth day thereafter are subject to continuing garnishment. O.C.G.A. § 18-4-111(a).

      . At this point it should be noted that this is not a case of an insurer’s mere refusal to provide compensation, wilful or negligent delay in claim processing, or "simple" wrongful termination (whether negligent or wilful) of benefits. Plaintiff has alleged facts which, if proved, might provide the basis for a finding that defendant denied plaintiff his rightful benefits by engaging in fraud, deceit, misrepresentation, abuse of process, and/or conversion (each being distinct and cognizable tortious conduct). For this reason, the court finds cases involving wilful or negligent delay, denial, or termination of workers' compensation benefits without more to be of little assistance in the resolution of this case. Such cases include: Hixon v. State Compensation Fund, 115 Ariz. 392, 565 P.2d 898 (Ariz.App. 1977) (wilful termination); Noe v. Travelers Ins. Co., 172 Cal.App.2d 731, 342 P.2d 976 (1959) (delay); Sullivan v. Liberty Mutual Ins. Co., 367 So.2d 658 (Fla.App.), cert. denied, 378 So.2d 350 (Fla.1979) (wilful termination); Hicks v. Bd. of Educ., 77 Ill.App.3d 974, 33 Ill.Dec. 683, 397 N.E.2d 16 (1979) (deliberate failure to process claim); Physicians & Surgeons Hospital, Inc. v. Leone, 399 So.2d 806 (La.App.), cert. denied, 401 So.2d 993 (La.1981) (failure to pay benefits); Chavez v. Kennecott Copper Corp., 547 F.2d 541 (10th Cir.1977) (applying New Mexico law) (denial of claim); Whitten v. American Mutual Liability Ins. Co., 468 F.Supp. 470 (D.S.C.1977), aff'd without opinion, 594 F.2d 860 (4th Cir.1979) (applying South Carolina law) (wilful termination).


author: GOETTEL, District Judge:

text:
    Judith E. BROWN, Plaintiff, v. MANUFACTURERS HANOVER TRUST COMPANY, Defendant.
    No. 82 Civ. 8051 (GLG).
    United States District Court, S.D. New York.
    Nov. 16, 1984.
    Judith E. Brown, pro se.
    Simpson, Thacher & Bartlett, New York City, for defendant; Richard A. Ross, J. Scott Dyer, New York City, of counsel.
   OPINION

GOETTEL, District Judge:

The plaintiff brought this pro se action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982) (“Title VII”), alleging that she was discharged in retaliation for opposing an unlawful discriminatory practice. The defendant now moves pursuant to Fed.R. Civ.P. 56 for summary judgment on the grounds that the doctrine of res judicata bars the litigation. For the reasons stated below, we grant the defendant’s motion.

Background

The defendant, a bank, employed the plaintiff as an Administrative Assistant from April 17, 1981, until October 19, 1981, when it terminated her employment. Two days later, the plaintiff filed an administrative complaint with the New York State Division of Human Rights (“NYDHR”). She alleged, inter alia, that her employment was terminated in violation of the New York State Human Rights Law, N.Y. Exec.Law § 290 et seq. (McKinney 1982), and Title VII.

Between December 1981 and February 1983, the NYDHR investigated the plaintiff’s complaint. On December 14, 1982, a conference was held before Kathleen Dennin, an investigator for the Department of Human Rights. Representatives of the defendant attended the conference; the plaintiff did not. Ms. Dennin prepared a report dated December 22, 1982, summarizing the evidence adduced at the conference. On January 24, 1983, after reviewing the Department’s files, the plaintiff submitted a thorough reply to the conference report. During the next three weeks, she thrice supplemented her reply.

On March 3, 1983, the NYDHR issued a formal Determination After Investigation, which concluded that there was no probable cause to believe that the defendant had engaged in the alleged discriminatory practices. The NYHRD Appeal Board upheld this determination as “not arbitrary, capricious or an abuse of discretion.” The plaintiff appealed to the Supreme Court of the State of New York, Appellate Division, First Department. On September 20, 1984, it unanimously confirmed the Appeal Board’s order. She has sought review of that order by the New York Court of Appeals.

In the summer of 1982, the plaintiff requested and received a Notice of Right to Sue Letter from the Equal Employment Opportunity Commission. She brought the instant action against the defendant on December 3, 1982. By order dated February 9, 1983, we dismissed with leave to replead all of the claims in the complaint except the Title VII claim. The plaintiff did not re-plead the dismissed claims. (The plaintiff also instituted several other state actions purportedly arising, directly or indirectly, from her employment discharge by the bank.)

Discussion

The defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56. The defendant argues that the plaintiff, having sought judicial review of her allegedly discriminatory treatment in state court, is now barred by the doctrine of res judicata from relitigating her claims in this federal Title VII action. We agree and, therefore, grant the defendant’s motion for summary judgment.

The controlling case is Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), a case remarkably similar to the instant action. In that case, the plaintiff filed a discrimination complaint with the NYHRD, which determined that there was no probable cause to believe the alleged discrimination had occurred. The NYHRD Appeal Board upheld this finding as “not arbitrary, capricious or an abuse of discretion; and the Appellate Division of the New York Supreme Court affirmed. The plaintiff did not seek review by the New York Court of Appeals, but instead brought a Title VII action in federal court. Again, she claimed discrimination on the basis of religion and national origin. Both the district court and the Second Circuit denied the defendant’s motion to dismiss the Title VII claim on res judicata grounds. The Supreme Court reversed and held that the district court should have afforded res judicata effect to the state court’s prior determination of discrimination claims since, under New York law, the plaintiff would have been barred from relitigating the same claims in a New York court. Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). Kremer instructs us to dismiss this nearly identical case on res judicata grounds.

The plaintiff argues, however, that her Title VII action raises issues different from those raised in state court. The record belies her assertion. In her amended NYDHR complaint, the plaintiff charged the defendant with terminating her because of her sex and in retaliation for her opposition to an unlawful discriminatory practice. The plaintiff’s federal complaint simply reiterates her retaliatory discharge allegation. (The other allegations in her complaint have either been dismissed or construed as in support of her Title VII claim.)

Since the elements of her New York and federal employment discrimination claims are virtually identical, the plaintiff may only relitigate her discrimination claim in federal court if she can establish that she was not provided a “full and fair opportunity” to litigate her discrimination claim in the state proceedings and was thereby denied due process. Id. at 480-81, 102 S.Ct. at 1896-97. The plaintiff challenges the fairness of the state proceedings, arguing, inter alia, that the Determination After Investigation was decided on an incomplete record and that she was not provided full access to the agency’s files. Despite the plaintiff’s contentions, the record reveals that she was afforded all of the protections provided by the New York Executive law. Indeed, unlike Kremer, she provided the NYHRD with substantial materials rebutting the defendant's evidence. The Supreme Court has had “no hesitation in concluding that [the New York law’s] panoply of procedure, complemented by administrative as well as judicial review, is sufficient under the Due Process Clause.” Id. at 484, 102 S.Ct. at 1899. We therefore reject the plaintiff’s due process challenge.

That the plaintiff is attempting to appeal the Appellate Division’s order to the New York Court of Appeals, does not affect the outcome of this motion. In New York, the pendency of an appeal does not alter the res judicata effect of the challenged judgment. Rodriguez v. Beame, 423 F.Supp. 906, 908 (S.D.N.Y.1976); Parkhurst v. Berdell, 110 N.Y. 386, 392, 18 N.E. 123 (1888); Sullivan v. George Ringler & Co., 69 A.D. 388, 74 N.Y.S. 978 (2d Dep’t 1902). Therefore, the pendency of the plaintiff’s appeal does not alter our conclusion that the doctrine of res judicata precludes the plaintiff from relitigating her discrimination claims here.

Conclusion

The defendant’s motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment in favor of the defendant dismissing the complaint, with prejudice and without costs.

SO ORDERED.