author: RICE, District Judge.

text:
    Dwane I. RUNYAN, Plaintiff, v. BOARD OF EDUCATION OF the COVINGTON EXEMPTED VILLAGE SCHOOL DISTRICT, Defendant.
    No. C-3-84-519.
    United States District Court, S.D. Ohio W.D.
    April 2, 1985.
    Stephen D. Martin, Worthington, Ohio, for plaintiff.
    James P. Barnes, Columbus, Ohio, for defendant.
   I. INTRODUCTION

RICE, District Judge.

Plaintiff was employed by Defendant in 1980 as a non-tenured industrial arts instructor under a five-year limited contract. (Stipulations, Doc. # 13,114; Ex. A). Plaintiff was in the fourth year of his contract when he ceased his teaching duties at Covington Middle School and Covington High School on March 30, 1984. He now contends that Defendant deprived him of his property without affording him due process of law in connection with this termination of his teaching duties.

Plaintiff attests to difficulties with his hearing as of at least 1978. (Runyan deposition, p. 29). He lost his license as a school bus driver in 1982 due to these difficulties. By November, 1983, Plaintiffs personal physician, Dr. Miller, advised Plaintiff that the noise in his teaching environment was exacerbating his hearing loss and that this hearing loss permanently incapacitated Plaintiff from performing his teaching duties. (Runyan deposition, p. 34). Based on the recommendation of Dr. Miller, which was later confirmed by additional testing, Plaintiff submitted a disability retirement application to the State Teachers Retirement System (STRS) on or about December 27, 1983. (Doc. # 13, 116).

On or about March 20,1984, Plaintiff and Larry G. Henry, Superintendent of the Covington Exempted School District, each received a copy of a letter from the STRS. (Doc. #13, 117 and Ex. B). The letter stated that the STRS needed information as to Plaintiffs last day of teaching and last day of sick leave before it could complete the processing of Plaintiffs application for disability retirement. The letter further stated that Plaintiff had to terminate his teaching responsibilities as of March 30, 1984, in order for processing of the application to continue. There is no STRS policy which requires that an employee use all of his accumulated sick leave prior to receiving disability retirement benefits. (Zimmerman deposition, p. 53).

Plaintiff and Superintendent Henry met on March 20, 1984, to discuss the March 20 letter from the STRS. (Doc. # 13, If 8). Plaintiff desired to terminate his teaching on March 30, 1984, as stipulated by the STRS, and communicated this desire to Superintendent Henry at the meeting. (Runyan deposition, p. 48). Plaintiff understood that the STRS’ criterion for disability retirement was that he have a permanent injury or illness which prevented him from teaching. Id. Plaintiff also informed Superintendent Henry of his need to ascertain, for purposes of the letter from the STRS, the number of days of sick leave which he had accumulated. Superintendent Henry was unable to provide that information to Plaintiff during the course of the meeting.

Subsequent to his March 20th meeting with Superintendent Henry, Plaintiff learned from another employee of Defendant that he had accumulated 194V2 days of sick leave. Plaintiff calculated that he would accumulate fifteen days of sick leave between March 30, 1984, the last day of his teaching, and the expiration of his accumulated days of sick leave. Plaintiff then responded to the letter which he had received from the STRS, informing them that his last day of teaching would be March 30, 1984, and that his last day of sick leave would be May 30, 1985. (Runyan deposition, p. 55; Doc. # 13; Ex. C).

Plaintiff and his pupils were switched out of the industrial arts shops and into classrooms for their regularly-scheduled meetings on March 20, 1984. This arrangement continued until Plaintiff’s last day of teaching on March 30, 1984.

The STRS’ response to Plaintiff’s letter came in their letter of March 26, 1984, copies of which were again sent to Plaintiff and to Superintendent Henry. The STRS indicated that, on the basis of Plaintiff’s plan to utilize his accumulated sick leave, and thus to draw his salary from Defendant through May of 1985, Plaintiff’s application for disability retirement benefits would be considered in May, 1985, with insurance coverage to begin on June 1, 1985. (Doc. # 13; Ex. D).

On March 28, 1984, members of Defendant Board of Education met to discuss Plaintiff’s desire to exhaust his accumulated sick leave prior to being placed on disability retirement by the STRS. Superintendent Henry outlined for members of Defendant the options which Defendant’s legal counsel had outlined with respect to Plaintiff’s proposed utilization of his accumulated sick leave. The first option was to allow Plaintiff to exhaust his sick leave as he requested. The second option was to place Plaintiff on an unpaid leave of absence due to medical reasons, as authorized by Section 3319.13 of the Ohio Revised Code. (Henry deposition, p. 17-20).

Members of Defendant Board of Education met again on April 9, 1984, to discuss Plaintiff’s plan to utilize his accumulated sick leave. They decided to pursue neither of the options previously outlined to them by Superintendent Henry. Rather, they looked to the collective bargaining agreement in effect between Defendant and the Covington Education Association, which represents the district’s teachers. Under Art. VI, Section 3 of the collective bargaining agreement, employees with five or more years of service, at the time of their retirement “shall receive payment based on the employee’s rate of pay at retirement ... for one-fourth of the employee’s accrued but unused sick leave up to a maximum of forty (40) days.” Defendant authorized Superintendent Henry and Treasurer Brinkman to convert Plaintiff’s accumulated sick leave into severance pay in accordance with this provision. This authorization occurred during an executive session; Defendant took no formal action on the issue. (Henry deposition, p. 45).

On April 10, 1984, Superintendent Henry sent a letter to the STRS to inform them that March 30, 1984, had been Plaintiff’s last day of sick leave as well as his last day of teaching. (Doc. # 13; Ex. D, F). On April 13, 1984, Superintendent Henry met with Plaintiff and presented him with two checks. The first represented an amount calculated as the difference between Plaintiff’s paychecks to date and the amount which Plaintiff had actually earned on a per diem basis. The second check represented Plaintiff’s severance pay and was equal to forty days of sick leave. (Doc. # 13; Ex. G). Plaintiff accepted both checks, but later returned them.

On the basis of Superintendent Henry's letter of April 10, the STRS sent a letter to both Plaintiff and the Superintendent on April 12, 1984. The letter stated that Plaintiff’s disability retirement application would be considered on May 18, 1984, and that his health insurance would become effective on June 1, 1984. (Doc. # 13; Ex. H).

On April 23, 1984, Plaintiff filed with Treasurer Brinkman a document entitled “Written Demand, Pursuant to § 3319.16, Ohio Revised Code, For a Hearing Before a Referee.” (Doc. # 13, Ex. I). Attached to said document was a sick leave affidavit completed by Plaintiff in which Plaintiff requested 200 days of sick leave beginning March 30, 1984, and ending May 13, 1985. (Doc. # 13, 11 16). It was a common practice for employees of Defendant to fill out a sick leave request after taking sick leave. (Runyan deposition, p. 19-20). The affidavit was Plaintiffs first such written request to utilize his accumulated sick leave. (Doc. # 13, ¶ 16).

Plaintiffs demand for a hearing was denied in a letter sent by Superintendent Henry to Plaintiff on April 25, 1984. Neither Defendant nor any of its agents or employees have approved the sick leave affidavit filed by Plaintiff on April 23, 1984. (Doc. # 13, ¶ 17).

On May 18, 1984, the STRS approved Plaintiffs application for disability retirement benefits, setting April 1, 1984, as the effective date for Plaintiffs receipt of benefits. (Runyan deposition, p. 66). The STRS made disability retirement benefit payments to Plaintiff until approximately June 29, 1984, when Plaintiff requested the STRS to discontinue his benefits and health coverage until resolution of the instant lawsuit. (Runyan deposition, p. 76).

The collective bargaining agreement governing Plaintiff and Defendant’s relationship includes an internal grievance procedure with a right of appeal to the state courts. (Doc. # 13; Ex. L). Plaintiff has never filed a grievance under the collective bargaining agreement with respect to the dispute as to the proper disposition of his accumulated sick leave. (Doc. # 13, 1121).

Plaintiff filed suit in this Court on June 6, 1984, seeking damages and equitable relief under 42 U.S.C. § 1983 against Defendant Board of Education, Superintendent Henry and Treasurer Brinkman. (Doc. # 1). On July 10, 1984, Defendants filed a Motion to Dismiss. (Doc. # 7). Joint Stipulations of Fact were filed by the parties on August 15, 1984. (Doc. # 13). Plaintiff dismissed his claims against the individual Defendants on August 16, 1984. (Doc. # 16). Defendant Board of Education filed its Motion for Summary Judgment on August 21, 1984 (Doc. # 19), which said motion was superseded, in its entirety, by a similar motion filed by the Defendant on September 10, 1984 (Doc. # 23). In its order of September 13, 1984, this Court mooted Plaintiff’s Motion for a Preliminary Injunction. (Doc. #2). Defendants’ Motion to Dismiss was conditionally sustained unless Plaintiff prepared and served within a prescribed time an Amended Complaint which fully complied with Fed.R.Civ.P. 8. The Court chose not to rule upon Defendants’ Motion for Summary Judgment at that time. (Doc. # 24). Plaintiff filed an Amended Complaint on September 14, 1984 (Doc. # 28), and filed his Motion for Summary Judgment on October 4, 1984. (Doc. #30).

II. DISCUSSION

A. Existence of a Protectible Property Interest.

Plaintiff’s position is that the conversion of his accumulated sick leave into severance pay constituted a termination of his employment by Defendant. He now seeks relief under 42 U.S.C. § 1983, arguing that Defendant’s denial of his written demand for a hearing meant that he was deprived of his property without procedural protection sufficient to satisfy the fourteenth amendment.

While Defendant has mounted a myriad of challenges to Plaintiff’s suit, the initial inquiry in a case of this type is to determine whether the Plaintiff’s interest is in fact within the fourteenth amendment’s protection of property. Spruytte v. Walters, 753 F.2d 498 (6th Cir.1985); Yashon v. Hunt, 696 F.2d 468, 470 (6th Cir.1983). Only if Plaintiff was deprived of a constitutionally protected property interest, provided that the other requirements of Section 1983 are met, do the fourteenth amendment’s requirements of procedural due process apply. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). As to what constitutes such a property interest, the Supreme Court stated in Roth, supra, that:

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Id. at 577, 92 S.Ct. at 2709. See also Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Plaintiff cites his employment contract, state law and the collective bargaining agreement as the sources for the property interests of which he has been deprived, namely: (1) his employment as an industrial arts instructor for the school year 1984-85; (2) his accumulated sick leave; (3) the sick leave which he would earn during the exhaustion of his accumulated sick leave; and (4) the insurance benefits provided to him by virtue of his employment by Defendant. (Doc. #28).

Examination of Plaintiff’s claim reveals that his entitlement to exhaust his accumulated sick leave is the crux of his case. Plaintiff has no interest in returning to teaching. However, only if Plaintiff is still considered to be employed by Defendant during the 1984-85 school year can he draw his salary for that year in the guise of exhausting the sick leave which he had accumulated during prior years. His ability to accrue additional sick leave benefits and to remain insured by Defendant throughout the 1984-85 school year also turn on the affirmation of his status as an employee of Defendant during the 1984-85 school year despite his explicit declaration of his inability to perform his former duties. Having pieced together Plaintiff’s argument as to the source of his right to exhaust his accumulated sick leave, this Court finds that it turns on a host of state law issues which remain largely unresolved.

Plaintiff roots his entitlement to utilize his accumulated sick leave even after ceasing his active teaching duties in both state law and the collective bargaining agreement. Section 3319.141 of the Ohio Revised Code provides in relevant part that:

Teachers and non-teaching school employees, upon approval of the responsible administrative officer of the school district, may use sick leave for absence due to personal illness, pregnancy, injury, exposure to contagious disease which could be communicated to others, and for absence due to illness, injury or death in the employee’s immediate family ... No sick leave shall be granted or credited to a teacher after his retirement or termination of employment.

Article VII, Section 1(A)(3) of the collective bargaining agreement similarly provides that “[ejmployees may use sick leave for absence due to illness, injury, incapacitation due to pregnancy, exposure to contagious disease which could be communicated to other employees if recommended in a written statement by a physician, and illness in the employee’s immediate family.” No Ohio decisions construing Section 3319.141 or Art. VII, Section 1(A)(3) have been cited to this Court. Both parties, however, have cited decisions involving Section 124.38 of the Ohio Revised Code, which provides the terms for sick leave for civil service employees and employees of state colleges and universities. Plaintiff contends that the authority under Section 124.38 indicates the nature of his vested right in his sick leave. Like Section 3319.-141, Section 124.38 provides that employees may use sick leave “upon approval of the responsible administrative officer of the employing unit.” Moreover, the permissible grounds for sick leave enumerated in Section 124.38 are identical to those in Section 3319.141.

In Ebert v. Stark Cty. Bd. of Mental Retardation, 63 Ohio St.2d 31, 406 N.E.2d 1098 (Ohio 1980), upon which Plaintiff relies, the Defendant had a policy of sick leave benefits which was more generous than that prescribed by Section 124.38. The Defendant amended its sick leave policy to provide for only the amount of benefits specified in Section 124.38, and attempted to reduce its employees’ accumulated sick leave to conform to the new formula for calculating the accumulation of such benefits. Upon Plaintiffs’ challenge to Defendant’s attempt to retroactively revoke their sick leave credits, the Supreme Court of Ohio held that “[t]he sick leave credits [under Section 124.38] once earned became a vested right of Plaintiffs.” 63 Ohio St.2d at 34, 406 N.E.2d at 1100. It ruled accordingly that Defendant’s new, skimpier sick leave policy could be applied only prospectively. Id.

In State ex rel. Britton v. Scott, 6 Ohio St.3d 268, 452 N.E.2d 1312 (Ohio 1983), relied upon by Defendant, university employees had made requests for paid sick leave from their employer, Ohio State University, indicating that they had been absent due to personal illness. The requests were disapproved by the university. The employees then brought an action in mandamus against the university and responsible officials. They argued not that the latter parties had abused their discretion in denying the requests for paid sick leave, but rather that Defendants were without discretion under the applicable statute, Section 124.38 of the Ohio Revised Code, to deny a sick leave request which cited a permissible statutory ground for the granting of such leave. 6 Ohio St.3d at 270, 452 N.E.2d at 1313. Upon scrutiny of Section 124.38, the Britton court held that the statute impliedly vested the university and its officials with the discretion to approve or disapprove sick leave requests. Believing no clear legal duty to perform on the part of the university or its officials to have been established, the Supreme Court affirmed the lower courts’ denial of the employees’ action in mandamus. Id.

A municipal ordinance restricting the permissible grounds for sick leave set forth in Section 124.38 was the issue in South Euclid Fraternal Order of Police v. D’Amico, 13 Ohio App.3d 46, 468 N.E.2d 735 (Ohio Ct.App.1983). The ordinance in question permitted employees to take sick leave for injuries and illnesses occurring while on the job, but not for injuries and illnesses arising during employees’ outside employment. The court noted that, under Ebert, Section 124.38 creates vested rights in sick leave. It also noted that those vested rights were not unlimited, but that sick leave could only be used for purposes outlined in the statute and that “[t]hese categories are quite specific and may not be expanded.” 13 Ohio App.3d at 48, 468 N.E.2d 735. Recognizing the position of Britton that a sick leave request citing a permissible statutory ground did not rob an employer of the discretion to disapprove the request, the South Euclid court suggested that an employer no longer had discretion to deny a sick leave request once it was factually determined to comply with Section 124.38. 13 Ohio App. at 48, 468 N.E.2d 735. The challenged ordinance was accordingly struck down as unconstitutional due to its restriction of the rights granted in Section 124.38. Id.

These decisions indicate that while Section 3319.141, like Section 124.38, may create vested rights in sick leave, there nonetheless may be permissible limits placed upon the granting of such sick leave. The statute does not spell out a right to exhaust accumulated sick leave after ceasing active employment, nor does it seem to imply such a right, the whole premise of sick leave being an employee’s eventual return to work after expiration of the permissible cause for absence.

While this line of analysis would appear to undercut Plaintiff’s claim herein, Plaintiff in fact relies on two other provisions of the Ohio Revised Code to further develop his entitlement to exhaust his accumulated sick leave. The first of these provisions is Section 124.39, which provides in pertinent part:

As used in this section, “retirement” means disability or service retirement under any state or municipal retirement system in this state.
(B) ... [A]n employee of a political subdivision covered by section 124.38 or Section 3319.141 [3319.14.1] of the Revised Code may elect, at the time of retirement from active service with the political subdivision, and with ten or more years of service with the state, any political subdivisions, or any combination thereof, to be paid in cash for one-fourth the value of his accrued but unused sick leave credit. The payment shall be based on the employee’s rate of pay at the time of retirement and eliminates all sick leave credit accrued but unused by the employee at the time payment is made. An employee may receive one or more payments under this division, but the aggregate value of accrued but unused sick leave credit that is paid shall not exceed, for all payments, the value of thirty days of accrued but unused sick leave, (emphasis added).

Both parties have in fact relied on different portions of Section 124.39 to support their proposed resolution of Plaintiff’s attempt to exhaust his accumulated sick leave. It was Section 124.39’s definition of “retirement” as including “disability or service retirement” which encouraged Defendant as to the permissibility of converting Plaintiff’s accumulated sick leave into severance pay under Art. VI, Section 3 of the collective bargaining agreement. (Henry deposition, p. 45). Plaintiff, on the other hand, relies on the ambiguity inherent in Section 124.39(B)’s use of the verbal construction “may elect.” In spelling out a formula for converting accumulated sick leave into severance pay, Section 124.39 does not explain what else a retiring employee “may elect” to do. Plaintiff’s belief is that the statute creates the option for an employee to choose between exhaustion of accumulated sick leave and severance pay and that, in unilaterally attempting to convert his sick leave into severance pay, Defendant effectively terminated Plaintiff’s employment without a hearing. (Doc. # 13; Ex. I).

Even assuming arguendo that Plaintiff’s interpretation of Section 124.39 correctly reflects the intent of the Ohio legislature, the collective bargaining agreement, which governed Plaintiff and Defendant’s relationship for the school year 1983-84, was believed by Defendant to authorize conversion of Plaintiff’s accumulated sick leave into severance pay. As it includes no definition of “retirement,” Art. VI, Section 3 of the collective bargaining agreement also requires interpretation before it can be said to cover an employee’s disability retirement. This is not, however, the basis upon which Plaintiff attacks the utilization of this provision by Defendant. Rather, Plaintiff turns to a second state statute, Section 4117.10(A) of the Ohio Revised Code, to complete his argument as to his right to exhaust his accumulated sick leave.

Section 4117.10(A) provides in relevant part that:

An agreement between a public employer and an exclusive representative entered into pursuant to Chapter 4117 of the Ohio Revised Code governs the wages, hours, and terms and conditions of public employment covered by the agreement ... [L]aws pertaining to civil rights, affirmative action, unemployment compensation, workers’ compensation, the retirement of public employees, [and] residency requirements ... prevail over conflicting provisions of agreements between employee organizations and public employers.

(emphasis added). Plaintiff’s position is that, under Section 4117.10(A), Section 124.-39 supersedes the collective bargaining agreement to the extent of any conflict, thus establishing his right to “elect” to exhaust his accumulated sick leave, even if the collective bargaining agreement authorizes conversion of employees’ accumulated sick leave into severance pay. (Runyan deposition, p. 62).

In this Court’s view, however, Section 4117.10(A) is not itself free from ambiguity. No Ohio court has yet evaluated the statute’s substantive provisions as to the supremacy of state law over conflicting provisions of the collective bargaining agreements between public employers and their employees. Nor is it entirely clear whether or not Section 4117.10(A) could even be said to apply to the facts in the instant case. The Ohio legislature has specified that Section 4117.10(A) not be applied to any facts occurring before April 1, 1984. The collective bargaining agreement between Defendant and the Covington Education Association was negotiated before the start of the 1983-84 school year. Plaintiff applied for disability retirement in December, 1983. He terminated his teaching duties on March 30, 1984. The events concerning the attempted conversion of Plaintiff’s sick leave into severance pay took place in April of 1984. As a result, there is at least some question as to whether Section 4117.10(A) can properly be invoked by Plaintiff.

As evinced by the foregoing discussion, the very existence of Plaintiff’s property right in his accumulated sick leave rests upon several unresolved questions of state law, and with any supersession of state law, as claimed and interpreted by Plaintiff, of pertinent portions of Plaintiff’s collective bargaining agreement. It remains, however, for this Court to ascertain the impact of Plaintiff’s unsettled entitlement to his accumulated sick leave upon the propriety of this Court’s involvement in his dispute with his former employer.

B. Abstention

The “abstention doctrine” includes at least four distinguishable lines of cases which delineate those circumstances under which a federal court may decline to proceed with a particular case despite its ability to maintain jurisdiction over it. Wright, Law of Federal Courts § 52 (4th ed. 1983). Defendant has cited cases reflective of two strands of the abstention doctrine in its argument that this Court should abstain from the decision in this case and dismiss it without prejudice. See Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970) (citing Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). While this Court agrees that abstention is warranted under the rationale for abstention first outlined in Pullman, this Court also believes that, as is customary under Pullman, the proceedings in this matter should be stayed (rather than dismissed) pending adjudication in the Ohio state courts. Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972).

Under Pullman, abstention may be appropriate where the resolution of uncertain and ambiguous state law issues could moot a federal constitutional issue or cause it to be presented in a different posture. Ada-Cascade Watch Co. v. Cascade Resource Recovery, 720 F.2d 897, 903 (6th Cir.1983). Despite the numerous Ohio statutes involved in Plaintiff’s argument as to his vested right in his accumulated sick leave, this Court recognizes that this degree of state law involvement alone would not warrant an invocation of Pullman abstention. Plaintiff’s case, however, hinges upon his reading of the statutory ambiguity inherent in Ohio Rev.Code § 124.39 and its reference to the sick leave payment which a retiring employee “may elect.” Without a finding that this statute establishes an employee’s option to exhaust his accumulated sick leave, Plaintiffs argument, which embraces his position that the pertinent collective bargaining agreement is superseded by state statutes pertaining to retirement, must crumble, in effect mooting his instant suit alleging a deprivation of property violative of the fourteenth amendment’s guarantee of due process.

It appears that the state courts are open to hear Plaintiffs state law claim. The Ohio courts have demonstrated their willingness and their ability to engage in fact-finding under Section 3319.141 and, when appropriate, to compel the payment of sick leave to teachers bringing suit under that section. Springfield Education Ass’n v. Springfield Local Bd. of Education, 62 Ohio App.2d 184, 405 N.E.2d 727 (Ohio Ct.App.1977); Zartman v. Bd. of Ed. of Lakota Local Sch. Disk, 33 Ohio Misc. 217, 293 N.E.2d 575 (Ohio Comm.P1.1972), see Schooley v. Bd. of Ed., Zanesville, 50 Ohio St.2d 67, 362 N.E.2d 644 (Ohio 1977). It would appear that an action seeking a writ of mandamus, compelling Defendant to make a cash payment for Plaintiffs accumulated sick leave, would also lie. See State ex rel. Ohio Ass’n of Public School Employees v. Kettering City Bd. of Ed., 48 Ohio St.2d 139, 357 N.E.2d 384 (Ohio 1976).

The Court recognizes that, under Art. VIII, Section IV(2) of the collective bargaining agreement, a grievance is waived if not brought within fifteen days of the act upon which the grievance is based, and that Plaintiff herein never invoked the grievance procedure. While, under Ohio law, the doctrine of failure to exhaust such an administrative remedy may be a defense to an action in mandamus or an action for damages, it constitutes such a defense only if interposed and if a remedy exists which is effectual to afford the relief sought. Kaufman v. Village of Newburgh Heights, 26 Ohio St.2d 217, 271 N.E.2d 280 (Ohio 1971). It is difficult to conceive of the grievance procedure herein, under the unique facts of this case, as a relevant and effective framework of redress for Plaintiff, given that the crux of Plaintiffs argument is the irrelevance of the agreement due to the paramount authority of state statutes governing the sick leave entitlements of retired employees. Indeed, Art. VIII itself, which makes no provision for binding arbitration or the like, raises the question of whether an employee need invoke the grievance procedure at all prior to suit, an interpretation which even Defendant, in its filings with this Court, fails to dispel.

Favorable resolution in state court of the unsettled questions of Ohio law presented by Plaintiffs lawsuit may establish Plaintiffs property rights. In addition, such resolution is also likely to give Plaintiff precisely what he seeks, the ability to exhaust his accumulated sick leave as he wishes. Having found the standards enumerated for abstention under Pullman to have been met, the Court will stay the instant proceedings as is customary, and retain jurisdiction until, if and when, Plaintiffs federal claims need to be adjudicated.

III. CONCLUSION

Having found that abstention is proper in this case, the Court hereby sustains that portion of Defendant’s motion which urged that this Court abstain from considering the instant case. The balance of said motion, as well as Plaintiff’s Motion for Summary Judgment, is not ruled upon.

Plaintiff’s counsel is directed to notify this Court, at one hundred twenty day intervals, as to the progress of any state court litigation in order that this Court might determine when, if ever, this case may become viable once again. Obviously, should the state courts eschew jurisdiction, this Court should be notified.

      . Plaintiff is a member and former president of the Covington Education Association, and was a member of the negotiating team which struck the agreement with Defendant for the 1983-84 school year. (Runyan deposition, p. 11-12).

      . Art VI, Section 3, of the collective bargaining agreement, entitled "Severance Pay”, provides in full:
      Employees with five or more years of service to the Board of Education at the time of their retirement from the Covington Schools or death while an employee of the Covington Schools, shall receive payment based on the employee’s rate of pay at retirement or death for one-fourth of the employee’s accrued but unused sick leave up to a maximum of forty (40) days. In case of retirement, such payment shall not be made at the time of an employee’s resignation. Such payment shall not be made until the employee officially retires and has an application for retirement approved by the State Teachers Retirement System or the Ohio School Employees Retirement System. Payment will not be made while the employee is still receiving regular paychecks. Conversion of sick leave upon retirement shall eliminate all sick leave credit accrued by the employee. In the event of death, while an employee, payment will not be made until a certified copy of the death certificate is filed in the Board of Education Office. Payment will be made to the predetermined beneficiary or the employee’s estate.

      . 42 U.S.C. § 1983 reads, in pertinent part:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . Section 124.38 of the Ohio Revised Code provides in relevant part:
      Each employee in the various offices of the county, municipal, and civil service township service, each employee of any state college or university, and each employee of any board of education for whom sick leave is not provided by section 3319.141 [3319.14.1] of the Revised Code, shall be entitled for each completed eighty hours of service to sick leave of four and six-tenths hours with pay. Employees may use sick leave, upon approval of the responsible administrative officer of the employing unit, for absence due to personal illness, pregnancy, injury, exposure to contagious disease which could be communicated to other employees, and to illness, injury, or death in the employee's immediate family. Unused sick leave shall be cumulative without limit.

      . In Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), the Supreme Court found that a complex state system for regulation of the oil industry involving administrative decision-making and judicial review should be allowed to function without interference from the federal courts. The key question in applying the Burford abstention doctrine is whether an erroneous federal court decision could impair the state's effort to implement its policy. Ada-Cascade Watch Co. v. Cascade Resource Recovery, 720 F.2d 897, 903 (6th Cir.1983).
      This Court has little difficulty in agreeing with Defendant that this case implicates an area of considerable importance to the state and to the statutorily-created STRS. The Court does have greater difficulty, however, with the additional requirement for abstention enunciated in Burford, namely, that a state-created forum exists with specialized competence in the particular area. Ada-Cascade Watch Co., 720 F.2d at 903 (citing Burford, 319 U.S. at 327, 63 S.Ct. at 1104; and Nasser v. City of Homewood, 671 F.2d 432, 440 (11th Cir.1982). This requirement of a specialized state forum, as demonstrated in the latter-cited cases, appears to refer to administrative regulatory bodies and systems mandated by state statute, such as the system of state environmental licensing and approval found to warrant Burford abstention in Ada Cascade Watch Co. No such complex state system or state specialized forum exists in this case, nor does the Court believe that, at least in this Circuit, the courts of a particular state themselves qualify as the specialized state forum necessary for Bur-ford abstention. Unlike Pullman abstention, discussed infra, the Burford doctrine of abstention generally requires dismissal of the federal suit to which it is believed applicable.

      . The Court notes that Section 4117.09 of the Ohio Revised Code, contained within the new Chapter 4117 on Public Employees Collective Bargaining cited by Plaintiff, supra, provides in relevant part:
      (A) The parties to any collective bargaining agreement shall reduce the agreement to writing and both execute it.
      (b) The agreement shall contain a provision that:
      (1) Provides for a grievance procedure which may culminate with final and binding arbitration of unresolved grievances, and disputed interpretations of agreements, and which is valid and enforceable under its terms when entered into in accordance with Chapter 4117. of the Revised Code. No publication thereof is required to make it effective. A party to the agreement may bring suits for violation of agreements or the enforcement of an award by an arbitrator in the court of common pleas of any county wherein a party resides or transacts business.
      At least one set of commentators appears to believe that this section permits suit by an individual employee whose grievance procedure does not require binding arbitration, or who alleges a wrong which is excluded from a grievance procedure which includes binding arbitration. F. Lewis and S. Spirm, Ohio Collective Bargaining Law § 4117.09 (1983).

      . The final paragraph of Art. VIII, Sec. V of the collective bargaining agreement provides as follows: "Such decisions by the Board of Education shall be final except under certain provisions of the Ohio Revised Code; appeals and proper redress may be sought through the courts, should the employee choose to do so.” (emphasis added).

      . In its Reply Memorandum, Defendant states that "Plaintiff has conveniently overlooked the final sentence of Article VIII, Sec. V of the agreement between Covington Education Association and the Covington Board of Education which notes that in addition to the grievance procedure set out therein, the grievant may of course seek redress through the courts of Ohio.” (Doc. #37 at 4).


source: Caselaw Access Project

author: LEVAL, District Judge.

license: Public Domain

text:
    Homer LEE, Petitioner, v. UNITED STATES PAROLE COMMISSION, and J. Michael Quinlan, Respondents.
    No. 84 Civ. 3407 (PNL).
    United States District Court, S.D. New York.
    April 5, 1985.

      Homer Lee, pro se., petitioner.
    Henry J. Sadowski, Regional Counsel, U.S. Parole Com’n, Philadelphia, Pa., for respondents.
   MEMORANDUM AND ORDER

LEVAL, District Judge.

Pro se petitioner, Homer Lee, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He claims that the actions of the United States Parole Commission in setting his presumptive parole date constituted an abuse of discretion and a violation of the Ex Post Facto clause. The Commission moves to dismiss.

Facts

In January, 1982, Lee pleaded guilty in the Southern District of Florida to one count of bank robbery. A second bank robbery charge was dropped as part of the plea bargain. On February 22, 1982, Lee was sentenced to a term of 20 years. He was held in the county jail after receiving his sentence. On about March 2, 1982, he escaped from the jail and was apprehended in Philadelphia on about June 28, 1982. On October 4, 1982, Lee pleaded guilty in the Southern District of South Carolina to one count of escape. On November 4, 1982, he was sentenced to a five-year term, to run consecutive to the 20-year term.

According to Jack Schneider, the Case Analyst in the Regional Office of the Parole Commission, Lee was sentenced for the bank robbery under 18 U.S.C. § 4205(b)(2), making him immediately eligible for parole. As to Lee’s escape conviction, his parole eligibility was determined by 18 U.S.C. § 4205(a) which requires service of one-third of the sentence before being eligible for parole. As a result, Lee’s original parole eligibility date on the total 25 year term was twenty months — one-third of his five year sentence.

On March 7, 1983, Lee was given an initial parole hearing pursuant to 28 C.F.R. § 2.12. The examiner panel found that Lee was involved in one armed, masked bank robbery and an escape involving an assault on a jail guard. The panel found insufficient evidence to conclude that Lee had committed the second bank robbery. The panel recommended that Lee be held for a presumptive parole date after service of 60 months. The basis for this recommendation was that the panel rated Lee’s offense behavior at category 5 because of his involvement in the bank robbery and the escape. His salient factor score was 4. Under the parole guidelines, this resulted in a minimum service requirement of 48-60 months. See 28 C.F.R. § 2.20. The panel recommended a presumptive parole date at the top of the guidelines, i.e. 60 months, because Lee participated in an armed, masked robbery and the escape involved an assault on a jailer.

The Regional Office then reviewed the panel’s recommendation. The Administrative Hearing Examiner recommended that the information relating to the second bank robbery was sufficient to support a finding by the Parole Commission that Lee committed that robbery. He recommended that the panel’s recommendation of 60 months be increased to 70 months. The Regional Commissioner agreed with this recommendation and this became the final decision of the Parole Commission pursuant to 28 C.F.R. § 2.23(d). A Notice of Action that was sent to Lee explained that the basis for the 70 month presumptive parole date was that Lee’s offense behavior was rated as Category 6 severity because of his participation in three Category 5 offenses (two bank robberies and an assault on a jail guard). Lee’s salient factor score equaled 4. Under the Parole Commission guidelines, a range of 64-78 months must be served before release for cases with the above factors. In addition, the Notice stated that an additional 6-12 months was added to the original range for the escape offense under the Parole Commission’s recission guidelines. The combined guideline range was 70-90 months.

Lee filed regional and national appeals of this decision. On appeal, the Commission retained the 70 month parole date, but gave the petitioner credit for an additional 32 days he spent in jail. Therefore, Lee was given a revised presumptive parole release date of January 21, 1988. Lee then filed this habeas petition.

In June 1984, after the instant petition was filed, the Regional Commission reopened Lee’s case pursuant to 28 C.F.R. §§ 2.28(a) & 2.55(f) because it discovered that the Parole Commission had received a presentence report for ’the bank robbery after the initial hearing and that Lee had never been given an opportunity to review and respond to the information contained in this report. On September 18, 1984, Lee was given a new hearing.

After the new hearing, the panel recommended that the 70 month presumptive parole date be continued. It found that there was sufficient information to conclude by a preponderance of the evidence that Lee had committed both bank robberies. It also concluded that the escape involved some means of force against the prison guard. The Regional Commissioner agreed with this assessment and a Notice of Action was sent on or about October 18, 1984.

This Notice set out the reasons for the 70 month parole date. Lee’s original offense, the bank robbery, is a Category 5 severity offense which requires a minimum service of 48-60 months where the prisoner has a salient factor score of 4. See 28 C.F.R. § 2.20. In addition, since the escape involved the use of fear or force, it is rated as a Category 5 offense under the recission guidelines which require that an additional 24-36 months be' added to Lee’s original guideline range. The total guideline range was 72-96 months. However, since Lee had initially been given a 70 month parole date, the Commission retained the 70 month date because it had not received any new adverse information to support a more adverse decision. Pursuant to 28 C.F.R. § 2.14(a)(1)(h), Lee was scheduled for an interim hearing in March 1985. It appears that Lee never appealed the second decision by the Parole Commission.

Discussion

As an initial matter, it should be noted that this action could be dismissed for petitioner’s failure to exhaust his administrative remedies. Although Lee appealed the first Commission decision, he apparently has not appealed the second decision after the rehearing. See Miller v. Quinlan, 564 F.Supp. 802, 804 (S.D.N.Y.1983) (Weinfeld, J.) (habeas petition challenging Parole Commission actions dismissed on merits and for failure to exhaust administrative remedies). The defendants, however, have not asserted this contention.

Abuse of Discretion

In any event, this petition should be dismissed on the merits. The petitioner claims that the Commission erred in concluding that Lee committed the second bank robbery and that the escape involved the use of force or fear. I conclude, however, that there was no abuse of discretion. The Commission had sufficient evidence before it to support its conclusions.

The presentence reports for both the bank robbery and the escape convictions contained the following information. As to the second bank robbery, the reports noted that the same modus operandi was used in both the first and the second bank robberies. In addition, Lee and his coconspirator in the first robbery were placed in the vicinity of the second robbery on the day of the robbery. Finally, the second panel noted that the same confidential source who contributed information regarding the first robbery also tied Lee and his coconspirator to the second robbery.

As to the escape offense, the presentence report for this crime stated that Lee had hacksaw blades smuggled to him during a visit from his wife. These blades were used to saw through the bars of his cell. Lee, another prisoner, Michael McGarl, and a third prisoner tried to escape through a fire escape but were unable to do so. When a jail officer later entered the cell area, McGarl approached the officer holding one of the cell bars in his hand and demanded the keys. The officer slipped and fell to the floor while McGarl was standing over him with the bar. The escape presentence report states that Lee grabbed the key from the officer. At his second hearing, Lee produced a report written by the officer involved. This report stated that McGarl, not Lee, took the keys from the officer. After obtaining the keys, McGarl, Lee and the third prisoner escaped the jail on about March 1 or 2, 1982. Lee was recaptured on June 28, 1982.

The Commission specifically noted that although it was McGarl who held the pipe over the officer during the escape, Lee should be held responsible for this activity. The Commission also stated that regardless of the officer’s statement that he was not injured and did not believe that an assault had occurred, the fact that McGarl approached the officer with a pipe in his hand was sufficient to constitute an assault.

It is proper, and indeed expected, that the Parole Commission consider facts asserted in a prisoner’s presentence reports. See Billiteri v. United States Board of Parole, 541 F.2d 938, 944-45 (2d Cir.1976); 28 C.F.R. 2.19(a). In addition, the Parole Commission may properly consider offenses charged in the indictment but dismissed as a result of a plea bargain, as long as this does not violate the terms of the plea bargain. Robinson v. Hadden, 723 F.2d 59, 62 (10th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1684, 80 L.Ed.2d 159 (1984). As to the escape and assault, it was proper for the Commission to hold Lee accountable for his cohort’s actions. Under 28 C.F.R. § 2.20, Note 4 to the General Notes and Definitions of the Parole Commissions Guidelines, a prisoner is to be “held accountable for ... actions done in concert with others ... [but not for actions over which] the prisoner had no control and could not have reasonably been expected to foresee.” There was sufficient evidence that Lee actively participated in the escape and could have easily foreseen the assault by McGarl. As there was sufficient evidence to show Lee’s involvement in the offenses that the Commission considered in setting his severity rating and the 70 month parole date was clearly within the guidelines for Lee’s severity rating and salient factor score, the Parole Commission did not abuse its discretion in setting a presumptive parole date of January, 1988.

Retroactivity

Petitioner’s retroactivity argument is difficult to understand. Lee relies on Rodriquez v. United States Parole Commission, 594 F.2d 170 (7th Cir.1979). The Rodriquez court held that application of a provision in the 1976 Parole Commission and Reorganization Act, 18 U.S.C. § 4201 et seq., providing for interim hearings within 18 months after the initial hearing where the initial hearing was held immediately after the prisoner was sentenced, was a violation of the Ex Post Facto Clause in the case of a prisoner whose offenses were committed prior to the effective date of the new parole Act. The Seventh Circuit reasoned that the effect of the 18 month provision in cases where the prisoner was sentenced to a short term, for example 2 years or less, would be to deny the prisoner any meaningful opportunity for parole release. The court observed that very few prisoners were paroled at an initial hearing held just after the prisoner began serving his sentence usually because there is little evidence of the prisoner’s institutional behavior or his change in motivation at this early date. As a result, in cases where the sentence is 2 years or less, the next interim hearing (which would be the prisoner’s first realistic opportunity for parole) would not occur until the prisoner’s sentence was almost completed.

The Rodriquez case is not apposite. First, Lee’s offenses were committed after the effective date of the new parole Act. Second, Lee’s total sentence is not for a short period, but for 25 years. Finally, Lee has been given ample opportunity for parole consideration. He has had two full scale hearings and has an interim hearing scheduled for March 1985 pursuant to 28 C.F.R. § 2.14(a)(l)(ii). In addition, unlike the Rodriquez case, Lee was given an initial hearing after serving almost 20 months or one-third of his 5 year escape sentence. At the time of the initial hearing, there was ample evidence of Lee’s behavior while incarcerated for the Commission to make an adequate assessment of his parole capability-

Lee appears to be arguing that the Parole Commission guidelines and regulations were applied in such a way as to deprive him of any meaningful opportunity for parole. He claims that he will not be given another opportunity for parole until January 1988 — his presumptive parole release date. As shown above, petitioner was afforded two adequate initial hearings. The Commission made appropriate findings as to Lee’s offense severity rating and set a parole date in accordance with the parole guidelines. He has not been denied a meaningful opportunity for parole.

The petition is dismissed.

SO ORDERED.

      . In the memorandum of law submitted with his habeas petition, Lee contended that it was improper for the Administrative Hearing Examiner to modify the decision of the examiner panel. He quoted 28 C.F.R. § 2.23(c) which provides that a Hearing Examiner only votes on a panel recommendation if the two panel members cannot concur. However, in this case, the Hearing Examiner did not modify or vote on the panel recommendation; he simply made a recommendation to the Regional Commissioner. It was the Regional Commissioner who made the new findings. In any event, Lee was afforded a new initial hearing where he was given the opportunity resubmit his case. The second examiner panel recommended the same 70 month presumptive parole date that the Regional Commissioner had previously ordered. The decision of this new hearing panel superseded the prior panel’s decision. Since, as shown below, the second decision by the Commission is fully supported by the evidence, any procedural errors that may have occurred during the first Commission review are irrelevant.

      . The Commission apparently reached the determination of a Category 6 severity rating by increasing the severity rating for the three Category 5 offenses under 28 C.F.R. § 2.20, Note 2 of the General Notes and Definitions to the Parole Commission Guidelines. Note 2 provides that where "an offense behavior involved multiple separate offenses, the severity level may be increased.”

      . The recission guidelines contained in 28 C.F.R. § 2.36 apply to "new criminal behavior committed by a prisoner subsequent to his sentence and prior to his release on parole." This regulation requires that a separate guideline range be assessed for this new criminal conduct committed while in custody. These guidelines are added to the guideline range assessed for the original criminal conduct. It appears that the first hearing panel neglected to add the additional recission guideline range for the escape offense in determining Lee’s presumptive parole date. In reviewing this initial recommendation, the Regional Commissioner corrected this error by adding the recission guideline range of 6-12 months required for a simple escape under the recission guidelines. It should be noted that this 6-12 month range did not take into account the assault committed during the escape. In the initial Commission decision, the assault was considered separately in assessing the offense severity rating as noted above. In the second Commission decision, the assault was considered in determining the recission guideline range for the escape, but was not considered in setting the severity rating for the original offense. Therefore, in neither decision was the assault considered twice in the same parole review.

      . There is no significant difference in the background information set forth in the two reports.

      . A previous Notice of Action which contained an incorrect statement of the Commission’s reasons was sent to Lee about a week before this date. The second and amended Notice, sent on October 18, 1984, corrected this error.

      . See note 1 supra. The Commission could have properly reached the 70 month presumptive parole date without its finding that Lee committed the second bank robbery. As shown above at page 637, the first bank robbery and the escape would have justified a guideline range of 72-96 months.

      . The first hearing panel found that Lee had committed an "assault" on the jail guard in the course of his escape in March, 1982. The Regional Commissioner accepted this determination. In his original petition, Lee objected to the Commission's finding that he committed an "assault." After the second hearing, the Commission characterized the escape as having been committed "by the use of force or fear” without using the term "assault.” In his response to the Commission’s motion to dismiss the petition after the second hearing, Lee apparently claims that the Commission may not redefine this offense as an "escape using fear or force.” Since the second hearing was presumably intended to substitute the first hearing, the second panel was not bound by the findings of the first panel. In any event, as shown below, there was sufficient evidence to conclude that Lee was involved in an assault on a jailer while effecting his escape.


author: FILIPPINE, District Judge.

text:
    Wilma BREVARD, Plaintiff, v. N.O.I. CORP., d/b/a Oakbrook Gardens Apartments and as Fulcrum Associates, and Linda Zacheis, Defendants.
    No. 83-2292C(2).
    United States District Court, E.D. Missouri.
    April 8, 1985.
    Ernest L. Keathley Jr., St. Louis, Mo., for plaintiff.
    Arthur E. Herder, Jr., St. Louis, Mo., for defendants.
   MEMORANDUM

FILIPPINE, District Judge.

This matter is before the Court for a decision following a trial on the merits of plaintiff’s claim of age discrimination. The Court adopts the following Memorandum as its findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

Plaintiff brings this action under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621-634, alleging that she was dismissed from her employment with N.O.I. Corporation (“NOI”) because of her age. This Court has jurisdiction over plaintiff’s action, and venue is proper in this district. The plaintiff, Wilma Brevard, was 53 years of age when NOI discharged her. NOI is a foreign corporation registered to do business in the state of Missouri.

Plaintiff was first employed, part time, at the Oakbrook Garden Apartments (“Apartments”) in June of 1978 as a hall monitor. In November of 1978 plaintiff became a full-time employee. Plaintiffs full-time employment was the cleaning of vacant apartments.

Until April of 1980 the Apartments were managed by Mable Property Management Company. In April the defendant NOI took over the Apartments. NOI retained plaintiff as an employee; plaintiff continued to work full time cleaning vacant apartments. In addition, plaintiff worked overtime cleaning the hallways of Building 5028. Plaintiffs employment was terminated on February 25, 1983. This lawsuit followed.

The ADEA prohibits arbitrary age discrimination in employment. The evidentiary burdens established by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) apply in an action brought under the ADEA. Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 289 (8th Cir.1982). See also Pena v. Brattleboro Retreat, 702 F.2d 322, 323 (2d Cir.1983); Loeb v. Textron, 600 F.2d 1003 (1st Cir.1979). In order to establish a prima facie case in a claim of discharge the plaintiff must show that “(i) she was in the protected age group, (ii) she was qualified for her job, (iii) she was discharged, and (iv) the discharge occurred in circumstances which give rise to an inference of age discrimination.” Pena, 702 F.2d at 324. Thus “[t]o establish a prima facie case of discrimination, the plaintiff must produce sufficient evidence to support an inference that the defendant employer based its employment decision on illegal criterion.” Halsell, 683 F.2d at 290. See also Loeb v. Textron, 600 F.2d at 1013-14.

If plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. Should defendant meet this burden plaintiff must demonstrate that the legitimate reasons offered by defendant were a pretext for the discrimination. The ultimate burden of persuading the trier of facts that the defendant discriminated against plaintiff remains at all times with plaintiff. The intermediate evidentiary burdens outlined above serve to bring litigants and the Court expeditiously and fairly to this ultimate question. Texas Department of Community Affairs, 450 U.S. at 253, 101 S.Ct. at 1093. The Court concludes that plaintiff has failed to establish a prima facie case of discrimination. Even if plaintiff had established a prima facie case, the Court finds that defendants articulated nondiscriminatory reasons for plaintiff's dismissal that would rebut any inference of discrimination presented by a prima facie case.

Plaintiff meets the first three elements of a prima facie ease but has failed to introduce sufficient credible evidence to establish the existence of the fourth element. Plaintiff demonstrated that she was within the class of persons protected by ADEA, that she was qualified for her position, and that she was discharged. The credible evidence introduced, however, fails to show that plaintiff’s discharge occurred in circumstances which would give rise to an inference of age discrimination.

NOI did not hire anyone to replace plaintiff after she was discharged. Indeed from March 1, 1983, until approximately July 1, 1983, the cleaning of vacant apartments, plaintiff’s former employment, was performed by the remaining full-time employees as part of their regular work. Also, Billie Jo Hagen cleaned a few apartments for a $350.00 rent concession. Thus, during the four months immediately following the dismissal of plaintiff defendant NOI expended virtually no funds in cleaning vacant apartments over and above those funds normally paid to its workers. Following this period the cleaning of vacant apartments was performed by contract cleaners. The sums of money paid to the contract cleaners did not equal the salary of plaintiff. Furthermore, the contract cleaners supplied their own cleaning materials and received no fringe benefits as did plaintiff. Thus, plaintiff’s dismissal was based upon economic considerations. NOI quite simply did not require a full time employee to clean the vacant apartments and acted accordingly.

The credible evidence adduced at trial further demonstrated that plaintiff was offered part-time employment, but refused because such employment did not provide any fringe benefits. Although there was some evidence that defendant Linda Zacheis made an occasional derogatory comment concerning older people, such evidence does not, in light of NOI’s economic situation, warrant the inference that plaintiff was discriminated against because of her age.

After careful consideration of all the evidence presented to the Court and the arguments of counsel, the Court finds that plaintiff was not subjected to unlawful discrimination because of her age. The Court will, therefore, grant judgment in favor of the defendants.

Defendants’ claim for attorney’s fees will be denied because the Court does not find that plaintiff’s lawsuit was “frivolous, unreasonable or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).

JUDGMENT

In accordance with the Memorandum' filed this date and incorporated herein,

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants shall have judgment against plaintiff.

IT IS FURTHER ORDERED that plaintiff’s complaint be and is DISMISSED with prejudice.

IT IS FURTHER ORDERED that costs shall be taxed against plaintiff.

IT IS FURTHER ORDERED that defendants’ request for attorney's fees be and is DENIED.


author: FITZGERALD, Chief Judge.

text:
    ALASKA LIMESTONE CORPORATION, Plaintiff, v. Donald HODEL, Secretary, United States Department of the Interior, William J. Whalen, Director, National Park Service, and the United States of America, Defendants.
    No. A 82-392 Civil.
    United States District Court, D. Alaska.
    April 12, 1985.

      Edgar P. Boyko and Charles E. Tulin, Boyko, Davis & Dennis, Anchorage, Alaska, for plaintiff.
    Michael R. Spaan, U.S. Atty., Anchorage, Alaska, for defendants.
   OPINION

FITZGERALD, Chief Judge.

This cause comes before the court on cross-motions for summary judgment. The litigation raises important issues of statutory construction, administrative procedure and judicial review surrounding the government’s implementation of federal mining laws in the national parks. For the reasons set forth below, plaintiff’s (Alaska Limestone’s) summary judgment motion is now denied and defendants’ (the government’s) motion for summary judgment will be granted.

FACTS

On November 25, 1958, Alaska Limestone properly recorded a number of unpatented limestone mining claims within the Foggy Pass area of Mt. McKinley National Park. Congress permitted mining activity within McKinley during this period.

It is undisputed that Alaska Limestone’s claims contained large deposits of high quality limestone, a primary ingredient for cement production. Studies by the University of Alaska and the United States Geological Survey have well established the importance of the location. On August 16, 1960, Alaska Portland Cement Corporation obtained for $8,500 a five-year option from Alaska Limestone to buy Alaska Limestone’s McKinley claims. The price, if the option were to be exercised, amounted to 15 million dollars.

During the next two decades, Alaska Limestone did not develop its unpatented claims in the park. The company seems to have attempted to build an access road to its claims in McKinley Park, but was blocked from doing so by the National Park Service because of failure on the part of the company to obtain the requisite permits. Additionally, Alaska Portland Cement chose not to exercise its option to purchase Alaska Limestone’s claims. According to Alaska Limestone, this decision did not reflect any belief by the cement company that Alaska Limestone’s claims did not contain rich quantities of limestone. Rather the cement company’s decision reflected uncertainty over whether the government would ever permit the construction of an access road to the claims.

On September 28, 1976, an Act of Congress further diminished the chances that Alaska Limestone’s unpatented claims would ever be developed. On that date, Congress formally withdrew lands in McKinley from mineral entry. Pub.L. 94-429, 16 U.S.C. §§ 1901-1912 (1982). In passing the so-called “Mining in the Parks Act,” Congress noted that mining activities were threatening important environmental values within the National Park System. Congress declared that:

all mining operations in areas of the National Park System should be conducted so as to prevent or minimize damage to the environment and other resource values, and, in certain areas of the National Park System, surface disturbance from mineral development should be temporarily halted while Congress determines whether or not to acquire any valid mineral rights which may exist in such areas.

16 U.S.C. § 1901(b) (1982) (emphasis added).

Most importantly for Alaska Limestone’s purposes, Congress provided in § 1905 of the Act that:

within two years after September 28, 1976, the Secretary of the Interior shall determine the validity of any unpatented mining claims within ... Mount McKinley National Park and submit to the Congress recommendations as to whether any valid or patented claims should be acquired by the United States, including the estimated acquisition costs of such claims, and a discussion of the environmental consequences of the extraction of minerals from these lands.

16 U.S.C. § 1905 (1982) (emphasis added).

The Secretary of Interior (the Secretary) failed to comply with § 1905’s two-year deadline to inventory the validity of the unpatented mining claims and to report his findings to Congress. Nevertheless, under his direction the Bureau of Land Management (BLM) initiated a contest challenging the validity of Alaska Limestone’s McKinley mining claims on March 21, 1979. Within a week, Alaska Limestone filed a complaint in this court. It sought, among other things, a declaration that the enactment of the Mining in the Parks Act, and the Secretary’s subsequent failure to determine the validity of its McKinley claims within § 1905’s statutory deadline, constituted a taking of its property without due process of law. This action was dismissed as premature.

In the BLM contest, a hearing was held by an Administrative Law Judge of the Office of Hearings and Appeals, Department of the Interior, May 6 to May 10, 1980, in Anchorage, Alaska. At the outset of the hearing, Alaska Limestone moved to dismiss the government’s contest on jurisdictional grounds. Specifically, Alaska Limestone argued to the Administrative Law Judge, as it has done here, that the Secretary lost his long-established authority to pass on the validity of Alaska Limestone's claims when he failed to comply with § 1905’s two-year deadline. The Administrative Law Judge held that the Secretary’s authority to contest such unpatented claims remained intact, and denied Alaska Limestone’s motion to dismiss.

During the subsequent five day hearing, the government and Alaska Limestone presented extensive oral and documentary evidence to the Administrative Law Judge. At issue was the marketability of the contested claims. Although the government conceded that Alaska Limestone’s claims contained large deposits of high-quality limestone, it argued that the claims were nonetheless without validity due to lack of a reasonable market for the limestone. Alaska Limestone presented substantial evidence which, if asserted, demonstrated that absent government interference, its claims were highly marketable.

On July 15,1981, the Administrative Law Judge issued a decision concluding Alaska Limestone’s unpatented McKinley mining claims were invalid due to their lack of marketability. Alaska Limestone appealed the Administrative Law Judge’s decision to the Interior Board of Land Appeals (IBLA) of the Department of the Interior. In its opinion of August 25, 1982, the IBLA affirmed the AU’s decision. United States v. Alaska Limestone Corp., 66 IBLA 316 (1982). Shortly thereafter Alaska Limestone brought the present litigation in this court.

In its complaint, Alaska Limestone has alleged three causes of action. First, it reasserts the argument made before the AU that the Department of Interior lacked jurisdiction to contest the validity of Alaska Limestone’s mining claims. Second, because the Department of Interior improperly exercised jurisdiction, it is argued, the government took a valuable property right from Alaska Limestone without due process. Third, Alaska Limestone asserts that the decision of the AU was erroneous because, among other things, the evidence presented at the administrative hearing supported a finding that there was a market for the limestone from Alaska Limestone’s McKinley claims.

I now conclude that the judgment of the administrative bodies below must be upheld.

DISCUSSION

Jurisdictional Challenge

The first issue to be resolved is Alaska Limestone’s contention that the Secretary of Interior lost his long-established authority to contest unpatented mining claims within McKinley and other parts of the National Park System. Specifically, Alaska Limestone avers that because the Secretary failed to meet the Mining in the Parks Act’s two-year deadline to report to Congress, he was automatically divested of jurisdiction to contest Alaska Limestone’s claims. Such jurisdiction, plaintiff argues, vested in this court under § 1910 of the Mining in the Parks Act.

Alaska Limestone’s jurisdictional argument is essentially rooted in two legal doctrines. These are the doctrines of implied repeal and administrative estoppel. Under the doctrine of implied repeal, courts have historically found an implied congressional intent that the provisions of the earlier of two statutes covering a similar subject (e.g. mining law) be ignored by the courts in two specific instances. First, where provisions in the two acts are in “irreconcilable conflict,” the later act to the extent of the conflict constitutes an implied repeal of the earlier one. Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). Additionally, if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. Id.

In challenging the Secretary’s exercise of jurisdiction in this case, Alaska Limestone has asserted that Congress impliedly intended § 1905 of the Mining in the Parks Act to circumscribe the Secretary’s traditional contest powers. A review of the pertinent sections of this Act, however, does not reveal the existence of any “irreconcilable conflict” between the provisions of this statute and earlier powers to initiate contests of mining claims granted the Secretary. Indeed, the tasks Congress placed on the Secretary in the Act, those of determining the validity of unpatented mining claims within several of the national parks and making recommendations to Congress about acquisition of valid claims within them, clearly complemented rather than conflicted with the Secretary’s traditional management responsibilities. Prior to the enactment of the Mining in the Parks Act, the Secretary had discretion to determine the validity of unpatented mining claims within these parks, but under the Act, he was under a congressional mandate to do so.

Nor does the Act’s legislative history demonstrate that Congress intended the provisions of the Mining in the Parks Act to impliedly repeal the Secretary’s authority. In this instance, to the contrary, Congress’ intention that the Secretary’s historic regulatory power to contest such mining claims remain intact is repeatedly noted. The only statements made on the issue of repeal pertain to Congress’ intent expressly to repeal those provisions of the mining laws which had authorized mineral exploration and development in National Park System units like McKinley in the first place.

Finally, in dismissing any notions that Congress sought to impliedly repeal the Secretary’s traditional contest powers through passage of this legislation, recent decisions of the United States Supreme Court relating to the doctrine of implied repeal are instructive. In American Bank & Trust Co. v. Dallas County, the Court strongly reiterated that “repeals by implication are not favored.” 463 U.S. 855, 860, 103 S.Ct. 3369, 3373, 77 L.Ed.2d 1072 (1983) (citing Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936)); see also Tennessee Val ley Authority v. Hill, 437 U.S. 153, 189-90, 98 S.Ct. 2279, 2299-2300, 57 L.Ed.2d 117 (1978); Runyon v. McCrary, 427 U.S. 160, 172 n. 10, 96 S.Ct. 2586, 2595 n. 10, 49 L.Ed.2d 415 (1976).

The other facet of Alaska Limestone’s jurisdictional challenge over the Secretary’s authority to contest its McKinley mining claims seems to rest on principles of administrative estoppel. Alaska Limestone argues that because the Secretary “did not act timely in submitting estimated acquisition costs of the mining claims in Mt. McKinley,” the government was “es-topped” from exercising jurisdiction to contest the validity of Alaska Limestone’s claims.

The principle of administrative estoppel derives from the long-standing doctrine of equitable estoppel. When applied to individual litigants, this doctrine basically holds that where the party complaining himself has “unclean hands,” basic fairness demands that he be estopped from seeking redress from the very condition his conduct reasonably induced. See, e.g., Bankers Trust Co. v. Pacific Employers Insurance Co., 282 F.2d 106, 112 (9th Cir.1960); see also Bigelow, Law of Estoppel 603 (6th ed. Carter 1913) (“He who keeps silent when duty commands him to speak shall not speak when duty commands him to keep silent.”).

Although the doctrine of equitable estoppel has been frequently relied upon by the courts in resolving disputes between private litigants, its propriety as a shield against suits brought by the government has been uncertain. The Fifth Circuit, for example, has suggested that the government is subject to estoppel when it acts in a proprietary manner, but not when it exercises its sovereign powers for the benefit of the public. See, e.g., United States v. Florida, 482 F.2d 205, 209 (5th Cir.1973).

The Ninth Circuit has permitted use of the doctrine against the government, but only in very limited circumstances. In addition to demonstrating that the traditional elements of equitable estoppel are present, the party claiming estoppel against the government must also show “affirmative misconduct” as opposed to “mere failure to inform or assist.” Lavin v. Marsh, 644 F.2d 1378, 1382 (9th Cir.1981). There is no “all-purpose test” to detect the presence of affirmative misconduct. The court must analyze all of the circumstances of alleged misconduct and determine on a case-by-case basis whether sufficient affirmative government misconduct has occurred to invoke the estoppel doctrine against the government. Id. at 1382 n. 6.

Here the gist of the government’s alleged affirmative misconduct is that the Secretary failed to comply with certain inventory and reporting deadlines set by Congress. Certainly the Secretary’s failure to carry out the command of Congress merits no applause. Alaska Limestone has offered nothing to demonstrate that the Secretary intentionally ignored his responsibilities or affirmatively sought to deceive or mislead Alaska Limestone concerning his intentions to contest the corporation’s McKinley mining claims. In short, I conclude the inaction of the Secretary in this instance does not justify the imposition of the doctrine of equitable estoppel against the government.

I conclude Alaska Limestone has failed to demonstrate either an express or implied intention by Congress to restrict the Secretary's long-established authority to contest the validity of mining claims by enactment of the Mining in the Parks Act. Nor has Alaska Limestone established a sufficient factual basis to equitably estop the Secretary from exercising his authority to initiate a contest of Alaska Limestone’s unpatented claims. I conclude that the Secretary properly exercised jurisdiction to challenge Alaska Limestone’s McKinley mining claims.

DUE PROCESS CHALLENGE

Alaska Limestone’s second cause of action is inextricably intertwined with Alaska Limestone’s jurisdictional argument. The corporation avers that because the Secretary improperly exercised jurisdiction in this case, his ultimate determination that Alaska Limestone’s McKinley mining claims were invalid constituted a governmental taking of property without due process of law. The sole forum for the government to contest the validity of Alaska Limestone’s claims, it is argued, became the district court once the Secretary failed to comply with the Mining in the Parks Act’s strict timeliness.

Regarding the first prong of this argument, that the Secretary’s determination of invalidity constituted a taking of Alaska Limestone’s property without due process because of lack of jurisdiction, I have concluded otherwise. The second prong, that the district court was the only forum available to the Secretary to contest Alaska Limestone’s claims, must also be rejected.

It is true that the Mining in the Parks Act makes a specific grant of jurisdiction to the district court. Such jurisdiction, however, is not exclusive of the Secretary’s administrative jurisdiction to determine the validity of mining claims on public lands. Section 1910 of the Act, entitled “Civil Actions for Just Compensation by Mining Claim Holders,” merely expressly condifies a mining claimant’s traditional right to appeal as adverse administrative determination to federal court. The provision thus statutorily emphasizes Congress’ intention that valid mining claimants be properly compensated for any property taken by the government “by operation of this chapter, or by orders or regulations issued pursuant thereto.”

In addition to finding that the Secretary properly exercised jurisdiction in this case, I conclude that the government complied with the administrative procedures required under 43 C.F.R. § 4.451-1 to 4.452.-9. As such, Alaska Limestone’s claim that its due process rights were per' se violated by the Secretary’s mere assertion of jurisdiction in this case lacks merit. Whether the company’s property was taken by the government without just compensation requires review of the administrative determination invalidating Alaska Limestone’s McKinley mining claims.

CHALLENGE TO ADMINISTRATIVE DECISION

In addition to challenging the procedures followed by the government in this case, Alaska Limestone has attacked the substantive merits of the administrative determination of invalidity reached below. In reviewing this administrative decision, jurisdiction may be conferred under § 1910 of the Mining in the Parks Act as well as under the Administrative Procedure Act and 28 U.S.C. § 1331(a).

Alaska Limestone demands reversal of United States v. Alaska Limestone Corp., 66 IBLA 316 (1982). This decision affirmed the AU’s holding that Alaska Limestone’s McKinley claims were invalid. The appropriate standard of review permits reversal of the IBLA decision only if, upon review of the entire administrative record, I conclude the decision is not supported by substantial evidence. 5 U.S.C. § 706(2)(E); Rodgers v. Watt, 726 F.2d 1376, 1377 (9th Cir.1984); Doria Mining & Engineering Corp. v. Morton, 608 F.2d 1255, 1257-58 (9th Cir.1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1650, 64 L.Ed.2d 237 (1980); Laden v. Andrus, 595 F.2d 482 (9th Cir.1979); Verrue v. United States, 457 F.2d 1202, 1204 (9th Cir.1972).

The facts in this case are not subject to a trial de novo and I may not substitute my judgment for that of the administrative agency. Multiple Use, Inc. v. Morton, 504 F.2d 448, 452 (9th Cir.1974). “The expertise of the Department of Interior must be looked upon with respect and considered with care.” Id.

My review of the evidence and the relevant authorities leads me to conclude that the findings and conclusions of the administrative bodies below are correct; they rest upon proper understanding of the law and are supported by substantial evidence.

To determine whether, prior to the withdrawal date of McKinley lands from mineral entry, Alaska Limestone’s claims were valuable mineral deposits under 30 U.S.C. § 22 (1982), the ALJ and IBLA were required to apply the so-called “prudent person test” (whether the deposits were of such a character as to justify a person of ordinary prudence in expending further labor and means with a reasonable prospect of success in developing a valuable mine) as complemented by the so-called “marketability test” (whether the mineral can be extracted, transported and marketed at a profit). United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 1330, 20 L.Ed.2d 170 (1968); Rodgers v. Watt, 726 F.2d 1376, 1379 (9th Cir.1984); Melluzzo v. Morton, 534 F.2d 860, 862 (9th Cir.1976); Barrows v. Hickel, 447 F.2d 80, 83 (9th Cir.1971).

The decisions of the ALJ and IBLA in this case reveal that these administrative tribunals properly used and applied these legal standards to Alaska Limestone’s claims. Although the government stipulated with Alaska Limestone at the hearing before the AU that each of the McKinley claims contained a substantial quantity of high grade limestone suitable for use in agriculture and in cement production, the presence of large quantities of an extractable mineral is not in itself sufficient to make an unpatented mining claim valid. Applying the above noted standards, both the AU and the IBLA concluded that Alaska Limestone’s claims were invalid because there was simply no viable market for the limestone on those claims at the relevant times.

The IBLA and AU specifically rejected Alaska Limestone’s argument that the corporation could have created its own market for the limestone by constructing a profitable Portland cement facility in the vicinity of its McKinley claims. The IBLA noted that the presumption of unmarketability due to extended lack of mineral production was rebuttable. United States v. Alaska Limestone Corp., 66 IBLA at 320. It found, however, that Alaska Limestone had failed to present sufficient factual evidence to overcome this presumption. Id. The Board concluded that: Id. at 321 (emphasis added).

Where a claimant actually could have sold minerals on the cutoff date in an ongoing market, it is possible to demonstrate convincingly that the mineral was marketable at a profit on that date, by showing pertinent facts about the condition of the market, such as the prevailing sales price, market demand, and costs of production____ In contrast, where, as here, there was no market on the cutoff date in which the material could have been directly sold at a profit, and the claimant hypothesizes that it could have profitably established its own market for direct sales of the material, the difficulty of proving the hypothesis with convincing factual evidence is compounded. By presuming the existence of its own ce-
ment processing plant, appellant places us in a strictly theoretical arena, where estimates and conjecture replace evidence of the circumstances that actually prevailed. The conclusions from this exercise are too uncertain and conjectural to overcome the plain implications of appellant’s failure over 18 years to actually accomplish the profitable development of these claims.

The Board also held that Alaska Limestone had failed to prove its claim that the Department of Interior had illegally prevented the corporation from developing its McKinley claims:

[Alaska Limestone] suggests that the Department is to blame for its failure to develop these claims. It refers to incidents in 1960 and 1969 where National Park Service (NPS) personnel cited appellant’s representative for driving a Caterpillar tractor on a “cat trail” that appellant had constructed near the claims, and alleges that NPS failed to approve its access to them in 1960. However, appellant does not deny that it has never had a permit from NPS to construct a road across the park land surrounding its claims. In any event, it apparently never appealed any local NPS action that allegedly illegally inhibited its access to these claims. In the absence of any effort by appellant either to seek prior formal approval to drive vehicles across park lands into the claims, or to seek subsequent redress from NPS’ alleged prohibition of access to them, we do not recognize any basis for concluding that NPS improperly prevented appellant from developing its claims.

Id. at 326 (citations omitted).

Further review of the administrative record in this case reveals that the administrative determination that Alaska Limestone’s McKinley claims were invalid was supported by substantial evidence. I con-elude that Alaska Limestone’s McKinley mining claims were properly found to be invalid. An award of compensation under § 1910 of the Mining in the Parks Act is therefore inappropriate. Summary judgment will be granted for the government on this issue.

IT IS NOW ORDERED:

1) That the government’s motion for summary judgment on the issue of its jurisdiction to invalidate Alaska Limestone’s McKinley mining claims is GRANTED;

2) That the government’s motion for summary judgment on the issue of alleged violations of Alaska Limestone’s due process rights is GRANTED; and

3) That the government's motion for summary judgment on Alaska Limestone’s challenge of the administrative determination that Alaska Limestone’s mining claims were invalid is GRANTED.

      . The park’s name was changed to Denali National Park & Preserve with the passage of the Alaska National Interest Lands Conservation Act (ANILCA) in 1980. See 16 U.S.C. § 410(hh)(l) (1980).

        . Alaska Limestone apparently did not formally apply for the requisite road construction permits until March 10, 1978, long after the cement company allowed its option to buy Alaska Limestone's claims to lapse. According to Alaska Limestone’s papers, on May 11, 1978, an official of the National Park Service informed Alaska Limestone that its request for a road construction permit would not be considered until after the agency determined the validity of the unpatented claims. Such a determination was required by Public Law 94-429 discussed infra.

      . See 43 C.F.R. §§ 4.451 to 4.452-9 (1984) for the pertinent federal regulations authorizing and regulating government contests of unpatented mining claims.

      . This provision of the Act vests jurisdiction in the federal court to hear taking claims brought by possessors of both patented and unpatented mining claims who allege their property rights have been injured by operation of the statute. It provides as follows:
      § 1910. Civil actions for just compensation by mining claim holders
      The holder of any patented or unpatented mining claim subject to this chapter who believes he has suffered a loss by operation of this chapter, or by orders or regulations issued pursuant thereto, may bring an action in a United States district court to recover just compensation, which shall be awarded if the court finds that such loss constitutes a taking of property compensable under the Constitution. The court shall expedite its consideration of any claim brought pursuant to this section.
      (Pub.L. 94-429, § 11, Sept. 28, 1976, 90 Stat. 1344.)

      . Alaska Limestone has not argued that the Mining in the Parks Act contains language expressly restricting the Secretary's authority to contest mining claims. A review of the statute reveals no such express repeal.

      . Although federal mining laws have never explicitly conferred such authority upon the Secretary, the courts have long held that the Secretary's plenary authority over the public lands impliedly vests him with this contest power. See, e.g., Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659 (1920); Davis v. Nelson, 329 F.2d 840, 846 (9th Cir.1964). The Secretary's authority to initiate contests, and the procedures he must follow, are codified at 43 C.F.R. § 4.451 to 4.452-9 (1984).

      . For example, in favorably reporting the legislation to the House of Representatives, the House Committee on Interior and Insular Affairs explicitly noted that mining claimants within the National Park System remain “subject to such regulations as the Secretary may prescribe.” It was further stated that the Secretary’s general “management control” over mineral activities within the National Park System, based on his "responsibility to preserve the natural values of these areas,” would remain intact. See H.Rep. No. 94-1428, 94th Cong., 2nd Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 2487-92.

      . Id.

      . As noted earlier, the Secretary’s authority to initiate contests over the validity of unpatented mining claims has not been expressly granted in the federal mining statutes. Rather this power has been construed as an inherent subset of the Secretary’s statutorily-based plenary authority over management of the public lands. Thus Alaska Limestone’s claim that Congress intended to repeal by implication the Secretary’s con- ' test powers if he failed to comply with the time lines set out in the Mining in the Parks Act is a hybrid use of the implied repeal doctrine. For here the doctrine is being used to support the argument of congressional repeal of administrative regulations rather than of statutory provisions. To this extent reliance on the doctrine appears even less apposite.

      . In Federal Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), the Supreme Court held that the United States government could not be equitably estopped by the conduct of its agents. Although never overruled, the Merrill bar against use of the doctrine against the federal government has eroded in the fact of later Supreme Court precedents which state that an open issue exists whether estoppel lies against the government if a party proves "affirmative misconduct” on the part of a government agent. See Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (198Í); United States Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973).

      . In its papers, Alaska Limestone suggested that the government acted in "bad faith” during the hearings before the AU, engaging in "unethical machinations” and "procedural charades.” Plaintiffs Motion for Summary Judgment at 28 n. 1 (filed Aug. 15, 1983). My extensive review of the administrative record, however, has revealed no such evidence of procedural impropriety.

      . See, e.g., Lavin v. Marsh, 644 F.2d 1378, 1383 (9th Cir.1981) (finding "the facts in this case [pertaining to the Secretary of the Army's use of his authority to remove a lieutenant colonel from active service in the Army Reserve] do not justify such an extraordinary exercise of judicial power”); California Pacific Bank v. Small Business Administration, 557 F.2d 218, 225 (9th Cir.1977) (finding "under these circumstances that the SBA did not engage in ... ‘affirmative misconduct’ ”); Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 493 (9th Cir.1975), cert. denied, (en banc immigration decision finding no estoppel) 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). The court notes that although it has found that the doctrine of administrative estoppel is unavailable in this case, it may well have concluded an earlier action for administrative mandamus to require the Secretary to comply with the Mining in the Parks Act’s deadlines was appropriate. See, e.g., Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561 (1925); Pattillo v. Schlesinger, 625 F.2d 262 (9th Cir.1980).

      . For the express language of § 1910, see supra note 4.

      . 16 U.S.C. § 1910 (1982).

      . Although the Secretary could properly make his validity determination in accordance with these established administrative procedures, as he chose to do in this case, see Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); Davis v. Nelson, 329 F.2d 840 (9th Cir.1964), he could also, at his election, have initiated contest proceedings directly in the district court. See United States v. Zweifel, 508 F.2d 1150 (10th Cir.) cert. denied, 423 U.S. 829, 96 S.Ct. 47, 46 L.Ed.2d 46 (1975); see abo Hallenbeck v. Kleppe, 590 F.2d 852 (10th Cir.1979).

      . See note 4 for the text of § 1910.

      . See 5 U.S.C. § 702 (1982), which provides in pertinent part that “[a] person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

      . This is the statute granting the federal courts “federal question” jurisdiction.

      . As noted in its recent filing of excerpts from the administrative record, the government presented ample testimony at the hearing before Administrative Law Judge E. Kendall Clarke demonstrating that, contrary to Alaska Limestone’s arguments, there was little likelihood that the construction of a Portland cement facility would be financially viable in Alaska throughout the pertinent time periods. The testimony of government witness Edward Bracken of the Division of Economic Enterprise for the State of Alaska, for example, demonstrated that Kaiser Permanente Corporation chose not to build a cement processing facility in Alaska to develop limestone claims such as those staked by Alaska Limestone because the company concluded such a plant would not be economically attractive. The testimony of Charles J. Weiler, Supervisory Mining Engineer for the National Park Service, also presented substantial evidence on the issue of the marketability of Alaska Limestone’s claims. As highlighted by the government, the following testimony given by expert Weiler before Judge Clarke was especially pertinent:
      Q. And did you go to those claims?
      A. Yes, I did.
      Q. And when was that?
      A. First day on the claims was July the 20th, 1978.
      (TR. 37)
      Q. ... this isn’t the first time, I take it, that you have examined any mining claims for the purpose of validity, is it?
      A. It is not the first time, no.
      Q. Approximately how many mining claims have you examined for that purpose in the past?
      A. Since 1972 I’ve examined between five and six hundred claims.
      (TR. 52)
      Q. What is your opinion as to whether a reasonable man would have been justified, in 1976, in developing these particular claims with a reasonable prospect of being able to sell the (limestone) deposits from those claims at a profit?
      A. My opinion is that he could not.
      Q. ... could those limestone deposits have been marketed for agricultural uses?
      A. No, certainly not.
      Q. Could (those limestone) deposits have been marketed for aggregate in 76?
      A. No.
      Q. Now what at the present time, do you have an opinion as to whether it would presently be, whether a reasonable and prudent man would presently.be justified in expending his time and means to develop these particular claims with a reasonable prospect of being able to sell the (limestone) deposits from these claims at a profit?
      A. I do have an opinion on that.
      Q. And what is your opinion on that?
      A. That he could not do it now even if he could not do it in 1976.
      (TR. 136-137)

      . See supra note 4.