author: JACKSON, District Judge.

text:
    STATE OF MARYLAND, et al., Plaintiffs, v. Marion BARRY, et al., Defendants. COMMONWEALTH OF VIRGINIA, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
    Civ. A. Nos. 84-3785, 84-3833.
    United States District Court, District of Columbia.
    Feb. 28, 1985.

      Susan K. Gauvey, Baltimore, Md., for State of Md.
    Donald A. Lahy, Asst. Atty. Gen. for Va., for State of Va.
    Donald A. Thigpen, Jr., Asst. Corp. Counsel,. Washington, D.C., for defendants.
    Charles B. Ruttenberg, Arent, Fox, Plot-kin & Kahn, Washington, D.C., for defendant-intervenor.
   MEMORANDUM AND ORDER

JACKSON, District Judge.

Attracted by favorable prices reflecting the District of Columbia’s lower liquor tax rates, residents of the District’s Maryland and Virginia suburbs have for years been travelling to the District to buy, in quantity, distilled spirits they expect to serve or consume at home. Maryland and Virginia revenue authorities, aware that much untaxed liquor enters their jurisdictions from the District but unable, as a practical matter, to halt it without searching every motor vehicle as it crosses the City line, have regularly dispatched their agents to the District to keep watch at liquor stores for vehicles registered in their states being loaded with alcoholic beverages. Once spotted, a suspect vehicle can be followed or apprehended by cooperating agents alerted and awaiting it as it enters its home state. The practice has, not surprisingly, depressed liquor sales by District merchants to would-be suburban smugglers, particularly during holidays, provoking the District to enact protective legislation, the most recent of which is the subject matter of these related (and therefore consolidated) actions for declaratory and injunctive relief. The State of Maryland, the Commonwealth of Virginia, and various of those states’ officials involved in the enforcement of their respective revenue laws, ask the Court to declare invalid and enjoin enforcement of certain District of Columbia legislation known as the “State Revenue Officers Registration Act of 1978 Amendment Emergency Act of 1984” (hereafter “the emergency act”). Passed as emergency legislation by the Council of the District of Columbia on December 4, 1984, to be effective December 7, 1984, and remain so for a period of 90 days, the law, as described by Mayor Barry in his letter of transmittal to the Council, “prohibits state revenue officers [of any state, including Virginia and Maryland] from coming into the District of Columbia for the purpose of conducting an investigation, or surveillance of District liquor stores for possible violations of their states’ alcoholic beverage control laws.” The cases are now before the Court on cross-motions of the plaintiffs for summary judgment and of the District of Columbia defendants and defendant-intervenors to dismiss. The Court finds sufficient material facts appearing of record to be undisputed for the purpose, and, for the reasons hereinafter set forth, will deny defendants’ motions to dismiss and grant plaintiff’s motions for summary judgment.

I.

Despite a history of indifference to, if not cooperation with, out-of-state revenue agents engaged in surveillance in the City since at least the 1950’s, in 1978 the Council of the District of Columbia passed the “State Revenue Officers Registration Act,” D.C.Code §§ 4-1001-1002, which required out-of-state revenue agents to register with District police not less than 72 hours before entering the District to conduct liquor-store surveillances. Then, in 1983, in response to reports of allegedly abusive conduct by certain visiting revenue agents, the Council amended the law by “emergency” enactment, effective December 21, 1983, to require that out-of-state agents have registered at least 30 days in advance, thus curtailing virtually all surveillance for the 1983 holiday season, most revenue agents not having been sufficiently prescient to have registered that far ahead. The 1983 emergency legislation expired naturally on March 20, 1984, and no further action was taken by the Council until November 21, 1984, when the 30-day registration requirement was reported out of committee in the form of permanent legislation. The bill was passed over, however, and at the urging of the Mayor, the Council then passed yet another “emergency” measure, the emergency act at issue here, effective December 7, 1984, which barred the entry of out-of-state revenue agents for purposes of surveillance altogether. As its legislative predicate the Council found, in substance: (1) that surveillance activities of out-of-state revenue agents had reduced lawful sales of alcoholic beverages in the District, resulting in a concommitant loss of tax revenues to the District “... from persons earning their living in the District ... who otherwise add little to the District’s tax base____(2) that the surveillance had resulted in “disturbances and harassment” of both retailers and their customers, presenting “a continuing threat to public safety and order”; and (3) that surveillance, if allowed to continue, would have a “negative effect on tourism” in the District.

II.

Both Maryland and Virginia contend that the District’s emergency act violates a multitude of constitutional provisions. Between them they raise the revenue agents’ right to travel, their First and Fifth Amendment rights, equal protection, and the privileges and immunities clauses of Article IV and the Fourteenth Amendment. They also assert that the emergency act contravenes the Commerce Clause and the Twenty-first Amendment. Neither the parties’ research nor that of the Court, however, has turned up a precedent in which one state’s efforts to prohibit another’s law enforcement officials from performing otherwise lawful duties within its borders has been held unconstitutional, or, for that matter, expressly upheld.

As a general rule, the constitutional guarantees relating to freedom of action and equality before the law are deemed to protect individuals only, and only as individuals, not as agents of a state. Compare Pennsylvania v. New Jersey, 426 U.S. 660, 665, 96 S.Ct. 2333, 2335, 49 L.Ed.2d 124 (1976) (per curiam); Hague v. C.I.O., 307 U.S. 496, 514, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.); Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 139 & n. 7, 93 S.Ct. 2080, 2104 & n. 7, 36 L.Ed.2d 772 (1973) (Stewart, J., concurring). See also United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944). It is also clear that a state acts only through its agents, City of Charlottesville, Va. v. Allen, 240 F.2d 59, 63 (4th Cir.1956), cert. denied, 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664 (1957), and that peace officers are such agents. See, e.g., Daughtry v. Arlington County, 490 F.Supp. 307, 313 (D.D.C.1980).

The District’s emergency provision, on its face, applies only to “state officials,” and D.C.Code § 4-1001(2) defines a “state official”, as an “agent, employee, or representative officially responsible for the administration and enforcement of laws of a state relating to alcoholic beverages, tobacco, and tobacco products.” Thus, by its terms, the emergency act does not purport to infringe the revenue agents’ individual constitutional rights of free speech, travel, association, and the like; the officers are restricted only in their capacities, and to the extent they are acting, as state agents. The legislation leaves them free on their own time to enter the District as may any citizen, and to observe and report anything they see to whom they will while they are there. Thus, neither the state plaintiffs nor their co-plaintiff officials possess any rights under the First, Fifth or Fourteenth Amendments which the proscriptions of the emergency act appear to offend.

Plaintiffs’ arguments based upon the Commerce Clause and the Twenty-first Amendment are similarly tenuous. Plaintiffs begin with the assertion that state regulation designed to confer economic benefits on local businesses and residents at the expense of other states is generally impermissible. But, while “simple economic protectionism” may be “virtually per se ” unconstitutional, see City of Philadelphia v. New Jersey, 437 U.S. at 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978), the Supreme Court has also observed that

where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 [90 S.Ct. 844, 25 L.Ed.2d 174] (1970).

Id. at 623-24, 98 S.Ct. at 2535-36. Pike v. Bruce Church, in turn, has been explained as holding that

[i]f ... the state regulation does not seek to distinguish between articles of commerce on the basis of their domestic or out-of-state origins, and the effects on interstate commerce are only incidental, the regulation will be found to burden commerce impermissibly only if, on balance, the benefits sought by the regulating state [do not] outweigh the detriments to interstate commerce.

U.S. Brewers Association v. Healy, 692 F.2d 275, 279 (2d Cir.1982), aff’d mem., — U.S. -, 104 S.Ct. 265, 78 L.Ed.2d 248 (1983).

One ostensible (and ostensibly legitimate) legislative objective of the emergency act is to diminish the likelihood of a breach of the peace growing out of confrontation between the surveillers and the surveilled. Moreover, not only does the act not discriminate between commodities, it actually enhances rather than inhibits interstate commerce in spirits. To the extent that it serves as an enticement to out-of-state customers to patronize D.C. liquor merchants it promotes an alternative market in competition with those of their home states. As the Supreme Court has held, a state’s efforts to keep open channels of free trade, even if for the express purpose of stimulating the local economy, do not transgress the Commerce Clause. See, e.g., Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960); Western and Southern Life Ins. Co. v. State Board of California, 451 U.S. 648, 671, 101 S.Ct. 2070, 2084, 68 L.Ed.2d 514 (1981); Bacchus Imports v. Dias, — U.S. -, -, 104 S.Ct. 3049, 3056, 82 L.Ed.2d 200 (1984). The fact that the District intended the emergency act to frustrate Maryland’s and Virginia’s efforts to enforce their own liquor laws enacted pursuant to the Twenty-first Amendment is both incidental and immaterial. The Amendment does not permit one state to foist any part of the burden of enforcing such laws on its sister states. Cf. Healy, 692 F.2d at 280-81.

III.

It appears that comity alone, and not constitutional compulsion, underlies the willingness of the several states to tolerate the presence of foreign law officers within their borders in the performance of their duties. As a matter of common sense, it seems obvious that, comity ought to attend the relations of sovereign states, if not to the point of mutual assistance to one another in the enforcement of their respective laws, then at least to the extent of refraining from intentional obstruction of the enforcement of those laws which do not offend their own public policy. The emergency act now at issue actually invites citizens of Maryland and Virginia to violate their states’ duly-enacted revenue laws, and it cannot be seriously urged that those laws are repugnant to any public policy of the District of Columbia, which has similar laws of its own.

But while notions of comity might counsel against the emergency act, the plaintiffs have pointed to no authority indicating that comity is in any respect obligatory. Rather, the case law seems to point in the opposite direction: the District, as a sovereign, has an inherent right to control the exercise of police powers within its territory. In a recent case, although factually remote from this, the Supreme Court dispelled the suggestion that either comity or the Full Faith and Credit Clause compel any particular degree of respect from one state for another’s statutory law. In holding that Nevada may not invoke its sovereign immunity as a bar to an action against it in a California state court, the Supreme Court restated the proposition that

“Full Faith and Credit does not here enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.”

Nevada v. Hall, 440 U.S. 410, 423-24, 99 S.Ct. 1182, 1189-90, 59 L.Ed.2d 416 (1979), quoting Pacific Ins. Co. v. Industrial Accident Commission, 306 U.S. 493, 504-05, 59 S.Ct. 629, 633-34, 83 L.Ed. 940 (1939). And in rejecting Nevada’s argument that the Constitution implicitly establishes a system “in which the States are not free to treat each other as unfriendly sovereigns,” the Supreme Court said:

Nothing in the Federal Constitution authorizes or obligates this Court to frustrate [California’s] policy out of enforced respect for the -sovereignty of Nevada____
Hi * Ht * * *
It may be wise policy, as a matter of harmonious interstate relations, for States to accord each other immunity____ They are free to do so. But if a federal court were to hold, by inference from the structure of our Constitution and nothing else, that California is not free in this case to enforce its policy ..., that holding would constitute the real intrusion on the sovereignty of the States____

Id., 440 U.S., at 426-27, 99 S.Ct. at 1191-92. Accord Biscoe v. Arlington County, 738 F.2d 1352 (D.C.Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 909, 83 L.Ed.2d 923 (1985).

IV.

It is, however, ultimately unnecessary to determine the constitutionality of the District’s emergency act at issue here to decide the instant motions, for its infirmity does not derive from any constitutional shortcomings so much as its invalidity as an exercise of the Council’s emergency powers under D.C.Code § l-229(a). It is apparent on the record that circumstances did not warrant the Council’s resort to its emergency legislative powers as a vehicle for amending the State Revenue Officers Act of 1978.

In District of Columbia v. Washington Home Ownership Council, 415 A.2d 1349 (D.C.1980), the District of Columbia Court of Appeals affirmed a judgment declaring an emergency enactment of the City Council invalid and enjoining its enforcement, saying:

... Congress intended the Council’s emergency power to be an exception to the fundamental legislative process requiring a second reading and congressional layover; it is not an alternative legislative track to be used repeatedly whenever the Council perceives an ongoing emergency.
H¡ * 'k H* V *
We therefore hold that when the Council, by a two-thirds vote after a single reading, enacts legislation in response to emergency circumstances, as authorized by [D.C.Code § l-229(a) ], that act “shall be effective for a period of not to exceed ninety days,” id., and the Council has no authority to pass another substantially identical emergency act in response to the same emergency.

Id. at 1359 (emphasis added).

The concerns the Council sought to address by the “emergency” legislation involved here are, as were those in Washington Home Ownership Council, chronic, not acute. They recur at each holiday season, only to go into remission until the next when the demand for alcoholic potables inevitably revives. Yet, following their “emergency” amendment to the 1978 act in December, 1983, to impose the 30-day registration requirement, the Council, anticipating precisely the same situation in December, 1984, rather than timely act on pending permanent legislation, again chose to resort to its emergency powers, thus accomplishing the same result as had the 1983 emergency act: assured absence of inquisitive out-of-state revenue agents during the busy 1984 holiday liquor-buying season.

Such matters are proper subjects for permanent legislation, upon which the full range of the political process can be brought to bear. If it is a sovereign’s prerogative to refuse another’s request for aid in enforcing its laws, it is also a sovereign’s prerogative to enact churlish laws of its own once in a while. But the District of Columbia must legislate within the limited sovereignty conferred upon it by Congress. The citizens of the District are entitled to the alloted time to contemplate the consequences of so provocative an act as the one at issue here. And Congress’ reservation of its right to examine the District’s proposed laws for its own purposes must likewise be respected. Whether Congress would find the District’s emergency act compatible with the place it envisions for the District of Columbia in the federal union is unknown, but it may wish to consider its propensity to incite retaliation by the neighboring states it affronts, and the likelihood of its being emulated by other states, or in other contexts, across the country if it succeeds as intended.

It is, therefore, for the foregoing reasons, this 28th day of February, 1985,

ORDERED, that the motions of defendants and defendant-intervenors to dismiss are denied; and it is

FURTHER ORDERED, that plaintiffs’ motions for summary judgment are granted and the State Revenue Officers Registration Act of 1978 Amendment Emergency Act of 1984 is declared null and void; and it is

FURTHER ORDERED, that defendants Marion Barry and Maurice Turner, and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are permanently enjoined from enforcement thereof.

      . Maryland, its comptroller, and two state revenue agents, filed a complaint and motion for temporary injunctive relief on December 12, 1984, naming Mayor Marion Barry, the D.C. City Council, Police Chief Maurice Turner, and the 13 members of the City Council as defendants. Maryland has since conceded that the individual council members and the Council itself are absolutely immune from suit for injunctive relief. See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). Thus, the complaint as to these defendants is dismissed.
      Virginia and two of its revenue agents filed their complaint on December 18, 1984. The District of Columbia, Mayor Barry, and Police Chief Turner were named defendants. The cases were consolidated on December 20, 1984. It is arguable that in suing the District of Columbia, Virginia places this action within the original and exclusive jurisdiction of the Supreme Court. See 28 U.S.C. § 1251(a)(1). However, considering the specificity with which Congress typically treats the issue of federal jurisdiction with regard to the District of Columbia, compare 28 U.S.C. § 1332(d), this Court is reluctant to hold that the District is a "state" for purposes of § 1251. The Court finds it has jurisdiction over Virginia’s action under 28 U.S.C. § 1331 as to the individual defendants Mayor Barry and Chief Turner and does not reach the issue of its jurisdiction to entertain it as to the District of Columbia.

      . Both Maryland and Virginia prohibit the importation of alcoholic beverages purchased out-of-state in excess of certain prescribed amounts. See Md.Ann.Code, art. 2B, § 3(a)(2)(h) (one quart); Va.Code §§ 4-72.1, 4-84 (one gallon or four liters).

      . Mid-Atlantic Liquor Consortium, a trade association, and Central Liquor Stores, Inc., a D.C. liquor retailer, were granted leave to intervene as defendants in both actions.

      . The bill amended the pertinent section of the D.C.Code to add the following:
      No State official shall be allowed to come into the District of Columbia to enforce that State’s laws relating to alcoholic beverages, including any law levying a tax on alcoholic beverages, or to conduct an investigation or surveillance at or about any retail liquor establishment or cause to be surveilled activities done in the District of Columbia relating to a possible violation of that State’s laws relating to the importation of alcoholic beverages.
      D.C.Code, § 4-1002(a)(2). The penalty for violation of the law is a civil fine of up to $300 for each violation. Id., § 4-1002(d).

      . Maryland suggests that the absence of precedent is explained by the fact that no state has ever before attempted so audaciously to legislate against interstate police activity.

      . The states' apparent power to regulate the intrastate operations of foreign police officers is further supported by long-standing statutory provisions governing "fresh pursuit” arrests. A Maryland court, construing such-a statute, has observed that it "obviously encompasses a bumper-to-bumper high speed chase across the District line and just as obviously does not. encompass looking for a Baltimore City robbery suspect in the District on a mere hunch.” Swain v. Maryland, 50 Md.App. 29, 435 A.2d 805, 810 (1981). In the absence of cases to the contrary, these statutes, along with the Supreme Court’s expressions on the nature of comity as a matter of grace alone, bespeak a consensus that a state, as a sovereign, has power to condition or refuse the entry of foreign peace officers for any purpose having to do with the execution of their official duties.

      . Under the District of Columbia’s Home Rule Act, Pub.L. No. 93-198, Title IV, § 412, 87 Stat. 788 (1973); Pub.L. No. 95-526, 92 Stat. 2023, the District Council is empowered to pass permanent legislation by a majority vote after two readings, at least 13 days apart. . D.C.Code § l-229(a). If the Mayor does not veto the act within ten days, or if the Council overrides his veto by a two-thirds vote, it becomes effective only after a 30 legislative-day layover in Congress, which may vote it down by joint resolution. D.C.Code §§ l-227(e), l-233(c)(l). The Council also has authority to pass emergency legislation by a vote of two-thirds of the members if "emergency circumstances make it necessary that an act be passed after a single reading, or that it take effect immediately upon enactment," D.C.Code § l-229(a), but emergency legislation is,.however, to be effective for a period not to exceed 90 days. Id.

      . Washington Home Ownership Council, the District argues, is distinguishable in that it involved three nearly identical emergency acts, each passed immediately upon the expiration of its predecessor, whereas the emergency act at issue here expanded the 30-day registration requirement to an absolute prohibition in response to worsening conditions. The distinction imports no difference. The principle enunciated in Washington Home Ownership Council is that the Council cannot circumvent the “fundamental legislative process” by resorting to its emergency power in response to a perennial situation.

      . Substantial deference must, of course, be accorded the Council's determination of the existence of "emergency circumstances” sufficient to warrant its circumvention of the hearing and layover provisions of D.C.Code §§ l-146(a), 1-144(e) and 1 — 147(c)(1). See American Federation of Government Employees v. Barry, 459 A.2d 1045, 1051 (D.C.1983). However, even so limited in the scope of its judicial review, the Court cannot conclude that the record and legislative history of the 1984 act establishes justification for emergency action. Even the “harassment” which gave rise to the Council’s professed fear for the public order if foreign revenue agents were not restrained, so far as appears from the record, appears to have been nothing more than the discomfiture of out-of-state customers of D.C. liquor stores at being observed buying potential contraband and the merchants’ ire at losing their business, but nothing of a magnitude to suggest that the District’s own police officers would have been unable to handle the situation.

      . The District of Columbia Court of Appeals has held that the purpose of the second reading requirement is to provide notice of and an opportunity for hearing on a pending legislative proposal. Similarly, the layover requirement was established as a safeguard to assure Congress an effective means of carrying out its constitutional responsibility under Article I to legislate for the District. District of Columbia v. Washington Home Ownership Council, 415 A.2d at 1352, 1357-58.


source: Caselaw Access Project

author: BEAM, District Judge.

license: Public Domain

text:
    Edna Aline MIERS, Plaintiff, v. CENTRAL MINE EQUIPMENT COMPANY, Defendant.
    CV 84-0-43.
    United States District Court, D. Nebraska.
    Feb. 28, 1985.

      E. Dean Hascall, Omaha, Neb., for plaintiff.
    Neil B. Danberg, Jr., Joe P. Cashen, Omaha, Neb., for defendant.
   BEAM, District Judge.

This matter is before the Court upon the defendant’s motion for summary judgment (filing 13). After a review of the pleadings, affidavits and the submitted briefs, this Court finds that the motion for summary judgment should be granted in part and denied in part.

On January 27, 1984, the plaintiff Edna Aline Miers, personal representative of the estate of Jack Gerald Miers, filed this action in the United States District Court for the District of Nebraska predicating jurisdiction on diversity of citizenship and alleging negligence, strict tort liability, and intentional concealment as the basis of her cause of action against the defendant Central Mine Equipment. The gravamen of the allegations is products liability. The death of the plaintiff’s decedent was allegedly caused by an oil well auger manufactured by the defendant.

The plaintiff seeks to recover damages in a survival action on behalf of the decedent’s estate, and in a wrongful death action on behalf of the decedent’s widow and next of kin. Nebraska Wrongful Death Act Neb.Rev.Stat. §§ 30-809 et seq. This matter is presently before the Court for consideration of the defendant’s motion for summary judgment on the issue of whether the plaintiff’s claims are barred by the ten-year limitation for commencing actions as stated in Neb.Rev.Stat. § 25-224(2).

The Court finds that the plaintiffs second, third and fourth causes of action are barred by the statute of limitations, unless the plaintiff can establish fraudulent concealment, thus estopping the defendant from relying on the statute of limitations defense. Further, the Court finds that under the facts of this case the plaintiffs first cause of action, the wrongful death action, is not barred by the statute of limitations defense.

The chronology of events in this case is important to the resolution of this issue. The product that allegedly caused the injury was first sold to the decedent’s employer on May 11, 1973. The injury that gave rise to this action and resulted in the death of the decedent occurred on January 27, 1982, approximately eight years and eight and one-half months from the date the product was first sold for use or consumption. The death of the decedent occurred February 21, 1982, less than one month later. Therefore, both the injury and death of the decedent occurred within ten years from the date the product was first sold. In fact, the death occurred one year and about two months before the ten-year period ended. This action was filed January 27, 1984, within the two-year period prescribed by the Wrongful Death Statute. Neb.Rev.Stat. § 30-810.

The issue in this case becomes not only the interpretation and the effect of the ten-year limitation period in Neb.Rev.Stat. § 25-224(2), but also the Wrongful Death Statute, Neb.Rev.Stat. § 30-809, as well as Neb.Rev.Stat. § 25-213, relating to the interest of infants and other persons under disability. The defendant argues that the plain meaning of Neb.Rev.Stat. § 25-224(2) bars the action. The plaintiff counters with three arguments: (1) that Neb.Rev. Stat. § 25-213 extends the ten-year period because of the disability of the decedent’s minor children, (2) that an application of Neb.Rev.Stat. § 25-224(2) to this case is unconstitutional since it bars the plaintiff’s access to the courts, and (3) that equitable estoppel bars the defendant from relying on the ten-year limitation period.

I.

The Nebraska Legislature enacted Neb. Rev.Stat. § 25-224 to govern the time limits for bringing a product liability action which provides, in part:

(1) All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs. [Emphasis added].
(2) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption. [Emphasis added],
(3) The limitations contained in subsection (1), (2), or (5) of this section shall not be applicable to idemnity or contribution actions brought by a manufacturer or seller of a product against a person who is or may be liable to such manufacturer or seller for all or any portion of any judgment rendered against a manufacturer or seller.
(4) Notwithstanding the provisions of subsections (1) and (2) of this section, any cause of action or claim which any person may have on July 22, 1978, may be brought not later than two years following such date.
(5) ....

Neb.Rev.Stat. § 25-224 (Cum.Supp.1984).

While the Nebraska Supreme Court has not yet analyzed the ten-year limitation period of subsection (2), other courts have construed such a statute to have two separate and distinct functions. On one hand, it acts as a statute of repose, and on the other, as a statute of limitations. O’Brien v. Hazelet & Erdal, 410 Mich. 1, 299 N.W.2d 336, 341 (1980) (construing a six-year limitation for actions arising out of improvements to real property against architects and engineers); Oole v. Oosting, 82 Mich.App. 291, 266 N.W.2d 795, 799 (1978). One court has aptly described the nature of such statutes as that of a “hybrid.” Smith v. American Radiator & Standard Sanitary Corp., 38 N.C.App. 457, 461, 248 S.E.2d 462, 465 (1978), cert. denied, 296 N.C.App. 586, 254 S.E.2d 33 (1979). Like a statute of limitations, the statute bars suits after a cause of action accrues. Like a statute of repose, since the time limit runs from a time of sale or use rather than from the time the action accrues, the statute may bar a suit before the cause of action even arises. The function as a statute of limitations has been described as procedural, affecting the remedy, whereas, the function as a statute of repose deals with substance, affecting the right. McGovern, The Status of Statutes at 418-19.

By analogy, subsection (2) of Neb. Rev.Stat. § 25-224 functions as a statute of repose when the ten-year period begins to run from the date the product is first sold. If injury were to occur outside of the ten-year period, no substantive cause of action would ever exist.

“It does not bar a cause of action; its effect, father, is to prevent what might otherwise be a cause of action, from ever arising____ The injured party literally has no cause of action. The harm that has been done is damnum absque injuria —a wrong for which the law affords no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy.”

Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982) quoting Rosenberg v. North Bergen, 61 N.J. 190, 199-200, 293 A.2d 662, 667 (1972). However, in this case, since both the injury and the death occurred within ten years from the date the product was first sold, the statute of repose function of Neb.Rev.Stat. § 25-224(2) is not at issue.

In contrast, the function of Neb.Rev. Stat. § 25-224(2) as a statute of limitations is at issue. Like a statute of limitations, Neb.Rev.Stat. § 25-224(2) procedurally limits the period of time within which an accrued cause of action may be brought. Subsection (1) of Neb.Rev.Stat. § 25-224(1) provides that a products liability action must be brought within four years after the action accrues. Subsection (2) then states, “Notwithstanding subsection (1) of this section or any other statutory provision to the contrary,” the action must be commenced within ten years from the date the product was first sold. The practical effect of this is for subsection (2) to function as a statute of limitations on any cause of action that accrues more than six but less than ten years after the date a product is first sold. At such point in time, the injured party no longer has a full four years within which to commence a suit. Rather the period of time in which the plaintiff may seek a remedy in the courts becomes progressively shorter. Theoretically, if a products liability cause of action accrues nine years three hundred and sixty four days after the date the product was first sold, Neb.Rev.Stat. § 25-224(2) mandates a one-day statute of limitation.

The general rule is “unless forbidden by the state constitution, a state legislature may constitutionally shorten the periods of limitation fixed by previously existing statutes____ The Legislature may reduce a period of limitations and apply a new and shorter period to previously accrued causes of action so long as a reasonable time is allowed to bring such action.” Macku v. Drackett Prod. Co., 216 Neb. 176, 343 N.W.2d 58, 59-60 (1984). See Educational Service Unit No. 3 v. Mammel, Olsen, Schropp, Horn & Swartzbaugh, Inc., 192 Neb. 431, 222 N.W.2d 125 (1974); Greenhalgh v. Payson City, 530 P.2d 799 (Utah 1975); Bauld v. J.A. Jones Const. Co., 357 So.2d 401 (Fla.1978); Collier v. Smaltz, 149 Iowa 230, 128 N.W. 396 (1910); McCloskey & Co. v. Eckart, 164 F.2d 257 (5th Cir.1947); Davis & McMillan v. Industrial Acc. Com., 198 Cal. 631, 246 P. 1046 (1926).

II.

Before applying the separate functions of Neb.Rev.Stat. § 25-224(2) to this case, it is necessary to understand the nature of the plaintiffs causes of action and how they interact with general statutes of limitations. In essence, the plaintiff has two distinct causes of action. The first is the decedent’s cause of action that survives his death. This encompasses what the plaintiff has labeled her second, third and fourth causes of action. The survival action survives the decedent’s death only by “reason of the enactment of the survivor-ship statutes, Neb.Rev.Stat. §§ 25-1401 and 25-1402 (Reissue 1979).” Rhein v. Caterpillar Tractor Co., 210 Neb. 321, 314 N.W.2d 19, 22 (1982). Under this cause of action, the decedent’s estate seeks to recover for loss of decedent’s income, for his medical expenses incurred between the time of his injury and his death, and also for funeral and burial expenses. The Nebraska Supreme Court has stated, “[t]he survival statute ... does not create a new cause of action but merely preserves whatever cause of action was in existence on the date upon which the decedent died.” Rhein, 314 N.W.2d at 22.

General statutes of limitations apply to a survival action. In this case, the survival action accrued on the date of the decedent’s injury, January 27, 1982, and was not tolled by the decedent’s death. See, e.g., Cardin v. McGuirk, 111 Neb. 350, 196 N.W. 698 (1923) (where limitations begin to run before the death of a person entitled to maintain a suit for an interest in real estate, his death does not toll the statute, but it continues to run against the heirs of the estate). W. Prosser & W. Keeton, Prosser and Keeton on the Law of Torts, § 125A-127 (5th ed. 1984) (general discussion of the differences between survival actions and wrongful death actions). Because the injury to the decedent occurred toward the end of the ten-year period running from the date the product was first sold, subsection (2) shortened the period of time in which the survival action could be brought to approximately one year and three months. Neb.Rev.Stat. § 25-224(2).

As stated before, once a cause of action accrues and the Legislature shortens the relevant statute of limitations, the issue becomes whether the length of time provided to seek a remedy is reasonable. Macku, 343 N.W.2d at 58. See also, Terry v. New Mexico State Highway Com’n, 98 N.M. 119, 645 P.2d 1375, 1378 (1982). This rule was formulated for situations where a newly legislated change in the statutes of limitations, applied retroactively, operated to bar an existing remedy. However, the rule is “an appropriate general restriction on the Legislature’s right to statutorily limit actions.” Terry, 645 P.2d at 1379.

This Court believes that the Nebraska Supreme Court would find one year and three months to be a reasonable period of time in which to seek redress for injuries in a survival action. In Macku, 343 N.W.2d at 59-60, the Nebraska court upheld two years as a reasonable time in which to bring suit. In another case, four months was upheld as a reasonable time period within which to seek redress. See Educational Service Unit No. 3, 222 N.W.2d at 125. Therefore, the ten-year statute of limitations function of Neb.Rev.Stat. § 25-224(2) will bar the plaintiff’s second, third and fourth causes of action.

However, the plaintiff argues that the defendant should be prevented from raising the bar of the statute by the theory of equitable estoppel. In support thereof, plaintiff relies upon the decision of the Nebraska Supreme Court in MacMillen v. A.H. Robins Co., 217 Neb. 338, 348 N.W.2d 869 (1984). The Nebraska court held that a defendant is estopped from utilizing the medical malpractice statute of limitations and repose as a defense where such defendant wrongfully conceals a material fact necessary to the accrual of the cause of action and where such concealment causes the plaintiff to delay the filing of suit beyond the running of the statutory time period. In MacMillen, as here, the injury occurred within the ten-year period of the statute of repose.

The Court in MacMillen relied on Knaysi v. A.H. Robins Co., 679 F.2d 1366 (11th Cir.1982). In Knaysi the court identified two circumstances in which equitable estoppel may arise. “Equitable estoppel sufficient to bar the interposition of the statute of limitations results from representations or conduct which have induced a party to postpone bringing suit on a known cause of action, or from fraudulent concealment of an action which is unknown to a party, [citations omitted].” Knaysi, 679 F.2d at 1368. In a fraudulent concealment situation the court went on to identify two existing factors. First, “the defendant has control and superior, or exclusive, knowledge of facts necessary for the plaintiff to make out a cause of action. Second, the defendant by affirmative misstatements conceals these essential facts from the plaintiff.” Id.

This Court believes that there may exist an issue of material fact concerning whether affirmative misstatements were made by the plaintiff. Therefore, the defendant’s motion for summary judgment on this issue will be denied at this time in order that the plaintiff may attempt to prove the allegations of fraudulent concealment. However, this Court admonishes the plaintiff that to prevail on this issue, she must substantively prove more than a misrepresentation and failure to warn as alleged in the plaintiffs strict liability and negligence cause of action. Counsel for the parties shall fully brief the law of fraudulent concealment and its distinctions from products liability misrepresentations before a decision is made. If the plaintiff is alleging that silence, or failure to warn, or failure to take an affirmative step to reveal the alleged defect can be equated to the idea of fraudulent concealment under an equitable estoppel theory, then supporting caselaw must be included in the brief. Contra Stiles v. Union Carbide Corp., 520 F.Supp. 865, 868-69 (D.Tex.1981).

III.

The plaintiffs second cause of action in this case is brought under the Wrongful Death Act. Neb.Rev.Stat. §§ 30-809 et seq. The plaintiff has labeled this her first cause of action. Such action may be brought only in the name of the personal representative on behalf of the decedent’s widow and next of kin for their losses arising from the decedent’s death including loss of future income and maintenance, and for present and future loss of society and companionship. A wrongful death action is a statutory cause of action, not in existence at common law, created initially by the Lord Campbell Act. The difference between this and the survival action is that it is not for the benefit of the decedent but, rather, for the exclusive benefit of the widow or widower and next of kin of the decedent. Neb.Rev.Stat. § 30-810. Rhein, 314 N.W.2d at 22; United Materials, Inc. v. Landreth, 196 Neb. 525, 244 N.W.2d 164 (1976).

The Wrongful Death Action includes several limitations relevant to this case. First, the decedent’s death must have occurred because of a wrongful act that would have entitled the decedent, had death not occurred, to recover damages. Second, the wrongful death action must be commenced within two years after the death of such person. Third, it shall be brought only in the name of the personal representative for the exclusion benefit of the widow and next of kin.

In Nebraska the two-year limitation period in the Wrongful Death Act has been described as a condition precedent to the right of action and held to be an absolute provision, not subject to any exceptions. See Gengo v. Mardis, 103 Neb. 164, 170 N.W. 841, 844 (1919). This two-year limitation applies regardless of the statute of limitations applicable to the wrongful act that caused the decedent’s death. Even, for example, if negligence caused the death and a four-year statute of limitations applied to an action to recover for negligence, the two-year limitations of the Wrongful Death Act would apply instead. See Rhein, 314 N.W.2d at 21. Likewise, under the law of Nebraska, even if a defective product caused the decedent’s death, the wrongful death limitation period would apply rather than the longer four-year period or in this case the shorter period created by the ten-year period set forth in subsection (2). Cfe. Neb.Rev.Stat. § 30-810 with Neb.Rev.Stat. § 25-224(1) and (2). No prior statute of limitation legislation in Nebraska has been held to modify the two-year limitation period in the Wrongful Death Act.

In conclusion, the Court holds that the plaintiff’s second, third and fourth causes of action is barred by the statute of limitations defense, unless the plaintiff can establish fraudulent concealment, thus estopping the defendant from relying on the statute of limitations defense. Further, the Court finds that under the facts of this case the plaintiff’s first cause of action, the wrongful death action, is not barred by the statute of limitations defense.

Accordingly,

IT IS ORDERED that the defendant’s motion (filing 13) for summary judgment is in accordance with this memorandum and order granted in part and denied in part.

      . The following timetable is helpful:
      May 11, 1973 Product first sold
      January 27, 1982 Injury of decedent
      February 21, 1982 Death of decedent
      May 12, 1983 Ten-year period ends
      January 27, 1984 Case filed.

      . A products liability action is defined as:
      Product liability action shall mean any action brought against a manufacturer, seller, or lessor of a product, regardless of the substantive legal theory or theories upon which the action is brought, for on or account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formulation, installation, preparation, assembly, testing, packaging, or labeling of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or intended use of any product, or the failure to provide proper instructions for the use of any product.

        Neb.Rev.Stat. § 25-21,180 (Reissue 1979).

      . See McGovern, The Status of Statutes of Limitations and Statutes of Repose in Product Liability Actions: Present and Future, 16 The Forum 416, 417 (1980-81) [hereinafter McGovern, The Status of Statutes ]. In older treatises and case-law, “repose” and “limitations” were often used interchargeably, however, today distinctions are being made. Judges are being forced to make these critical distinctions by the influx of statutes of repose passed that affect several areas of the law. See also McGovern, Symposium Products Liability, The Variety Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am.U.L.Rev. 579, 587 (1981) (architects’ and contractors’ statutes of repose, medical malpractice statutes of repose, professional negligence statutes of repose, and products liability statutes of repose).

      . The Nebraska Supreme Court has upheld the right of the legislature to enact a statute that abolishes a fight. "The Legislature is entirely at liberty to create new rights or abolish old ones as long as no vested right is disturbed.” Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913, 916 (1982) (upheld ten-year period of repose for medical malpractice Neb.Rev.Stat. § 25-222 (Reissue 1979)).

      . Several state legislatures have provided a grace period in their statutes for a party to seek redress when injured toward the end of these "overall statutes of limitations” rather than relying on the courts to determine the reasonableness of various time periods. See, e.g., N.D. Cent.Code § 28-01-44(2) (1974); McGovern, Symposium at 622-641 (grace periods are designated in the comparison of statutes of repose and limitations in products liability and malpractice actions, and actions against architects and contractors, and other professionals for all fifty states).

      . The plaintiff argues that Neb.Rev.Stat. § 25-213 which provides for a tolling of statutes of limitations for persons under certain designated disabilities is tolled by the decedent’s death and the minority of the decedent’s children. The Court does not find the arguments persuasive. First, death is not considered a legal disability for purposes of section 25-213. Curdin v. McGuirk, 111 Neb. 350, 196 N.W. 698 (1923) (death does not toll statute of limitations, but it continues to run against the heirs of the estate). Second, though Neb.Rev.Stat. § 25-213 tolls an action for a person under disability that could be maintained by that person, in their own name when the disability was removed, it would not apply in this case. The decedent’s children could never maintain the survival action in their own name even after they reach the age of majority.

      . Neb.Rev.Stat. § 30-809 (Reissue 1979):
      Whenever the death of a person shall be caused by the wrongful act, neglect or default, of any person, company or corporation, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding . the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony.

      . Neb.Rev.Stat. § 30-810 (Reissue 1979):
      Every such action, as described in section 30-809, shall be commenced within two years after the death of such person. It shall be brought by and in the name of his personal representatives, for the exclusive benefit of the widow or widower and next of kin. The verdict or judgment should be for the amount of damages which the persons in whose behalf the action is brought have sustained. The avails thereof shall be paid to and distributed among the widow or widower and next of kin in the proportion that the pecuniary loss suffered by each bears to the total pecuniary loss suffered by all such persons. A personal representative shall not compromise or settle a claim for damages hereunder until the court by which he was appointed shall first have consented to and approved the terms thereof. The amount so received in settlement, or recovered by judgment, shall be reported to and paid into such court for distribution, subject to the order of such court, to the persons entitled thereto after a hearing thereon and after notice of such hearing and of the time and place thereof has been given to all persons interested by publication three successive weeks in a legal newspaper published within the county or, if no legal newspaper is published within the county, then in a legal newspaper published in an adjoining county; Provided, such amount shall not be subject to any claims against the estate of such decedent. When the amount of such settlement or judgment is five thousand dollars or more, the county court shall forthwith upon such settlement or payment of such judgment place such amount in interest-bearing certificates of deposit or a savings account in a banking institution pending the entry of an order of distribution by the court, and such interest that may accumulate pending the entry of such order shall be distributed in the same proportions as the settlement or judgment.

      . This is not to say that the statute of repose section of Neb.Rev.Stat. § 25-224(2) would not apply in certain circumstances. If the decedent’s death occurs anytime after ten years from the sale of the product, there would be no wrongful death cause of action in existence because the decedent would have had no cause of action at his death. Neb.Rev.Stat. § 30-809. However, if the decedent’s death occurs within the ten-year period, the statute of limitation periods of Neb.Rev.Stat. § 25-224(1) and (2), neither lengthens nor shortens the two-year provision in the Wrongful Death Act. See McMickens v. Waldrop, M.D., 406 So.2d 867, 870 (Ala.1981) (J. Jones, concurring) (interpretation of Wrongful Death Act and medical malpractice statute of limitation and repose).


author: SHAPIRO, District Judge.

text:
    VINE STREET CONCERNED CITIZENS, INC. v. Elizabeth H. DOLE, Secretary of Transportation of the United States and Thomas D. Larson, Secretary of Transportation of the Commonwealth of Pennsylvania.
    Civ. A. No. 84-6310.
    United States District Court, E.D. Pennsylvania.
    Feb. 28, 1985.

      Harold R. Berk, Philadelphia, Pa., for plaintiff.
    John M. Hrubovcak, Asst. Counsel, Dept, of Transp., Com. of Pa., Harrisburg, Pa., Rachel Shao, Asst. U.S. Atty., Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

SHAPIRO, District Judge.

Plaintiff in this matter sought injunctive relief under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., to prevent proposed pre-construction and construction activities on the Vine Street Transportation Improvements Project (the “Vine Street Expressway” or “Expressway”) until defendants have prepared an adequate Supplemental Environmental Impact Statement considering the impact of simultaneous construction of the Vine Street Expressway and the proposed Philadelphia Convention Center.

Plaintiff Vine Street Concerned Citizens, Inc. (“Concerned Citizens”) is a Pennsylvania non-profit corporation; its members include businesses and residents in the vicinity of the proposed Expressway construction. Defendants are Elizabeth H. Dole, Secretary of Transportation of the United States and Thomas D. Larson, Secretary of Transportation of the Commonwealth of Pennsylvania. This Expressway project is to improve that portion of the Vine Street Expressway (1-676) in Philadelphia between 17th and 18th Streets on the west and the Benjamin Franklin Bridge on the east. The project also includes ramps interconnecting with local streets and with the Delaware Expressway (1-95). The total length of limited access highway involved is approximately 1.3 miles.

Following a hearing on February 7, 1985, this court denied injunctive relief for reasons stated from the bench but retained jurisdiction to consider the merits of this litigation on an expedited basis. This memorandum is an elaboration of the court’s bench opinion.

In 1980, a joint federal, state and city task force was formed to develop alternatives for Vine Street. The task force determined that the originally proposed full-scale Expressway could not be achieved without unacceptable displacement of significant community resources and that there should be further consideration of alternatives. Preparation of the Draft Environmental Impact Statement (“DEIS”) considering numerous alternatives was completed in December, 1982. Following public hearings, evaluation of all comments received, and further review and analysis, a two-volume Final Environmental Impact Statement (“FEIS”) was prepared and approved by the Federal Highway Administration (“FHWA”) in September, 1983. The FEIS selected a scaled-down Expressway alternative as the basis for design and construction of the project. The FHWA record of decision accepting the final design of the scaled-down alternative was issued on March 6, 1984.

The Expressway construction is planned for completion under four construction contracts. According to the Affidavit of Vito Genua, Project Manager for the Pennsylvania Department of Transportation, the contracts contemplated for 1985 provide for pre-construction activities; building four noise walls near Chinatown, installing air conditioning and double glazing on the windows at Holy Redeemer Church and School and Roman Catholic High School, removing the Reading Railroad viaduct, building a pumping station at 10th and Vine Streets and modifying one at 22nd Street, building a retaining wall for the 13th Street bridge, building a temporary service road, and relocating some utilities. These pre-construction activities require termination of certain leases for parking lots adjacent to the proposed construction and demolition of some buildings. Work on the pre-construction phase is scheduled to commence in March, 1985, but delays in obtaining necessary federal funds may force at least some postponement.

During the preparation of the Expressway Draft and Final Environmental Impact Statements, the City of Philadelphia was contemplating the use of several sites for a Convention Center. On September 15, 1983, one week prior to FHWA's issuing the FEIS, the City’s Convention Center Steering Committee recommended that the Reading Terminal be selected as the site for a new Convention Center. The FEIS’s discussion of the proposed Convention Center is limited to the following paragraph:

Convention Center — Two sites are currently being considered by the City of Philadelphia for future consideration of a Convention Center in Center City. These sites, Franklintown (A) and Reading Terminal (B) are within the Vine Street study area. Selection of a site is expected in August, 1983, with construction completed in 1987.

FEIS, Volume 1, p. 75.

The Philadelphia City Council approved the Reading Terminal site on October 4, 1984, and the City is currently preparing a DEIS for the Convention Center. According to the Government’s testimony at this court hearing, this DEIS should be ready for circulation and public comment by the end of February or beginning of March, 1985,

The crux of the controversy before us is whether the simultaneous construction of the Expressway and Convention Center so essentially and extensively impacts the affected environment that a supplement to the Expressway FEIS is required. The pertinent federal regulation states:

The DEIS or FEIS may be supplemented at any time. Supplements will be necessary when there have been significant changes in the proposed action, the affected environment, the anticipated impacts, or the proposed mitigation measures.

23 C.F.R. § 771.129 (1984). The Concerned Citizens contend that until a supplemental EIS is prepared, all pre-construction and construction activities must cease or members of the Concerned Citizens will suffer irreparable harm. But defendants argue that whether there has been significant change is not properly before the court at this time. Because the Convention Center DEIS is not yet complete, the FHWA has not been able to determine whether the Convention Center plans constitute a significant environmental change meriting a supplemental EIS. Defendants also contend that until FHWA makes this decision, there is no final agency action ripe for review and this case is therefore premature. Furthermore, defendants assert that plaintiffs have failed to establish any irreparable environmental harm that will result from the pre-construction activities about to begin.

It is well established that the party moving for a preliminary injunction has the burden of proof and must show (1) a reasonable probability of eventual success on the merits, and (2) that irreparable injury pendente lite will occur if relief is not granted. Additionally, the court should consider, wherever relevant, (3) the possibility of harm to others from the grant or denial of injunctive relief, and (4) the public interest. In re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137 (3d Cir.1982); Oburn v. Shapp, 521 F.2d 142 (3d Cir.1975). In balancing these competing concerns, the court must consider the extraordinary nature of injunctive relief:.

[a]n injunction should issue only where the intervention of a court of equity is essential in order effectually to protect property rights against injuries otherwise irremediable ____ The basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.

Weinberger v. Romero-Barcelo, 456 U.S. 305, 311, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982) (citations omitted).

It was conceded by Louis Papet, Division Administrator of the FHWA, that the decision to build a Convention Center at Reading Terminal is of sufficient import to require reevaluation of the Expressway FEIS to determine if a supplemental EIS is necessary under 23 C.F.R. § 771.129. But the Government concedes only that consideration of whether a supplement is necessary must be made, not that a supplement will be necessary. It would be inappropriate for the court to review the results of that reevaluation now when the record is not sufficiently ripe. Plaintiff cannot demonstrate a likelihood of success on the merits because the underlying agency decision which the Concerned Citizens seek to challenge has yet to be made.

A FHWA reevaluation decision is expected approximately one month after the FHWA receives the Convention Center DEIS. If it decides not to supplement the Ekpressway FEIS, plaintiff may then challenge this final administrative action. The duty of the court would then be to review the administrative record to determine if the agency complied with NEPA’s procedural requirements and the agency’s refusal to supplement was not substantively arbitrary or capricious. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), Township of Springfield v. Lewis, 702 F.2d 426, 437 (3d Cir.1983) (“an agency’s determination not to [revise] an EIS must be reasonable under the circumstances.” (citations omitted)). If the FHWA determines to supplement the FEIS, then the court might consider the timetable for such an undertaking and the effect, if any, on the timing of phases planned for the Expressway project. When any supplemental EIS has been completed, the court may review the administrative record to determine if NEPA’s procedural requirements have been met and the decision was not substantively arbitrary or capricious.

Plaintiff’s burden of demonstrating harm is exacting:

The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.

Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir.1975) (emphasis in original). Plaintiff has failed to demonstrate that irreparable harm would result from the continuation of pre-construction activities until the FHWA decides whether to prepare a supplemental EIS.

The Concerned Citizens’ alleged injuries are economic rather than environmental. No irreparable damage to the environment will occur during 1985’s pre-construction activities and the substantive issues presented by this lawsuit will be decided on the merits prior to next year’s planned beginning of the actual construction of the Vine Street Expressway.

The state’s termination of leases for advertising signs and parking lots, if wrongful, may be remedied by money damages at law. See Ezy Parks v. Larson, 499 Pa. 615, 454 A.2d 928 (1982) (holding that Commonwealth Court abused its discretion in exercising its equitable power to enjoin the Pennsylvania Department of Transportation from terminating leases). Demolition of vacant buildings owned by the state is not even harmful; in any event, there has been no showing of irreparable harm to anyone.

There is also no irreparable harm with regard to the actual pre-construction work about to begin under the first contract. Construction of noise walls and installation of air conditioning and double glazing on windows of a church and two parochial schools will improve rather than damage the environment. If plaintiff’s objection to the noise walls is their proposed height, the walls can always be lowered or removed. Removal of the Reading Railroad viaduct is certainly not harmful; the completed commuter tunnel has made its need obsolete.

Construction and modification of pumping stations will lead to environmental improvement, since there will be improved surface water draining. There has been no evidence that building of a retaining wall and abutment for the 13th Street bridge will cause any harm to anyone. Construction of a temporary service road between Broad and 12th Streets will no doubt cause some inconvenience to some people, but the record is bare of any evidence of irreparable harm. There is also no evidence that relocation of utilities would cause serious detriment; it would certainly not cause irreparable harm. Of all the pre-construction activity only the noise walls and bridge work might not have been undertaken even if the Expressway project were seriously delayed or cancelled.

The entry of a preliminary injunction would subject third persons not involved in this litigation to possible harm. Just as the Concerned Citizens oppose the Expressway many other citizens wish this construction to proceed promptly because of their belief it will be beneficial to the community. Were it not for a general desire to improve Vine Street, the Expressway project would never have survived the rigorous and multiple debate and review processes. Thus, it is in the public interest for pre-construction work to begin.

Of course, the public interest also favors prompt determination of whether the proposed Convention Center forces delay or modification of the Expressway. For this reason, the motion for a preliminary injunction is denied but the case will be expedited on the merits, see Ashwood Manor Civic Association v. Dole, Slip Op. (E.D.Pa. September 26, 1984), to ensure that the FHWA acts promptly to reevaluate the Expressway FEIS in light of the Convention Center DEIS. It will be so ordered.

      . Planning for the Vine Street Expressway began during the 1960’s and 1970’s.

      . The scaled-down Expressway alternative is described in the FEIS as follows:
      The four-lane Scaled-Down Expressway ... separates through traffic from local directional service road traffic by extending the existing depressed lanes on Vine Street eastward from 17th Street to 9th Street, then becomes elevated to make direct connections to 1-95 and the Benjamin Franklin Bridge. An interchange at 15th and 16th Streets will provide traffic movements between the local street system and the depressed expressway lanes. Ninth Street, Ridge Avenue, and Wood Street will be closed to through traffic. 5th Street will remain open at its intersection with the bridge approach.
      East of the 15th/16th Street interchange, eastbound expressway traffic exits at 8th Street. Entrance to the expressway westbound will also be provided at 8th Street. Local and CBD access to 1-95 will be provided at Broad and 7th Streets. The intersection at 6th Street will be grade separated, for the westbound movement between the expressway and the Benjamin Franklin Bridge. The Benjamin Franklin Bridge Monument will be retained. The anticipated duration of construction is a 36-month period beginning in late 1985, with a total project cost of approximately 176 million dollars.
      FEIS, Volume 1, p. 26.

      . According to Edward S.G. Dennis, Jr., United States Attorney for the Eastern District of Pennsylvania, funding considerations would not affect at least lease termination and building demolition.

      . Plaintiff’s motion also appears to challenge the adequacy of the FEIS’s consideration of construction impact on archeological resources and the need for alternative planning for a decking above the Expressway to permit continued northern development of Chinatown. However, since plaintiffs presented no argument or evidence that the FEIS failed fully to consider the decking alternative or that the archeological reports and studies were deficient, this court must assume that plaintiff chose not to pursue these contentions.

      . Such a reevaluation was made to determine if a proposed parking garage, located immediately adjacent to the project between 15th and 16th Streets, would result in any significant changes in the impacts identified in the FEIS. The reevaluation concluded that the garage would cause no significant changes in impacts over those discussed in the FEIS, so no supplemental EIS was prepared.

      . The proposed Convention Center could undergo many changes between its draft and final EIS. Any Expressway supplemental EIS would consider the likely impact only of those alternative Convention Center plans being given serious consideration at the time of preparation of the Convention Center DEIS.

      . One of the Concerned Citizens is the owner of a gasoline station on Vine Street adjacent to the viaduct. He testified that his business depends on his visibility and accessibility to Vine Street traffic. Removal of this viaduct will increase the visibility of his station to traffic moving from east to west on the north side of Vine Street where he is located, and when the demolition is completed, it is more likely to be helpful to his business than harmful.

      . Though the Concerned Citizens have framed the legal issues in this suit as a request for a supplemental EIS, the real concern of those who testified was to oppose the scaled-down Expressway alternative altogether.


author: SANDERS, District Judge.

text:
    LEATH, McCARTHY & MAYNARD, INC. v. ARMY AND AIR FORCE EXCHANGE SERVICE, Richard D. Murray, Commander, Vivian R. West, Chic Hosiery, Corp.
    Civ. A. No. 3-84-2086-H.
    United States District Court, N.D. Texas, Dallas Division.
    March 1, 1985.

      M. David Bryant, Jr., Hughes & Hill, Dallas, Tex., Richard S. Zackin, Crummy Del Deo Dolan & Purcell, Newark, N.J., for plaintiff.
    Stafford Hutchinson, Asst. U.S. Atty., Ernest R. Higginbotham, Strasburger & Price, Dallas, Tex., Dean Gibson, Berry, Hogewood, Edwards & Freeman, Charlotte, N.C., for defendants.
   MEMORANDUM OPINION AND ORDER

SANDERS, District Judge.

This case is before the Court on Plaintiff’s Brief in Support of Application for Preliminary Injunction, filed December 19, 1984; Federal Defendants’ Opposition, filed January 7, 1985; Defendant Chic Hosiery Corporation’s Brief in Opposition, filed January 7, 1985; and Plaintiff’s Reply Brief, filed February 20, 1985. Each submission has supporting affidavits.

Factual Background

This case arises out of the award of a two-year requirements contract under Solicitation No. AAFES-MR-[ AXX-XX-XX-XXX ], awarded by Defendant Army and Air Force Exchange Service ("AAFES”) to Defendant Chic Hosiery. The contract concerned the supply of women’s hosiery to be stocked as AAFES’ house brand.

Plaintiff Leath, McCarthy and Maynard (“LM & M”) had been the supplier of the hosiery products since 1979. In the latter part of 1983, the AAFES contracting officer, Defendant Vivian R. West, sought and received LM & M’s permission to distribute its specifications for the product to various potential suppliers for the submission of samples. The letter (MR-A/2) stated: “Items submitted for review must be of ‘equal or better’ quality than specifications indicated.” Exhibit C, Plaintiff’s Brief.

Chic responded to the letter, and included samples and product data sheets. Although Chic apparently misunderstood the terms of the letter, Hanks Transcript at 88, the samples were not of what AAFES defined as comparable quality. Plaintiff’s Exhibit F, Page Affidavit.

Following receipt of all responses to MR-A/2, AAFES issued the Solicitation to seven companies, including LM & M and Chic. The Solicitation incorporated by reference the quality specifications of MR-A/2:

1. Style numbers indicated above are those submitted by prospective offerors in response to AAFES-MR-A letter dated 6 Oct. ’83 [MR-A/2], incorporated herein by reference, which provide specifications for items listed herein. By submission of a proposal offerors certify that their products/style numbers are equal to or better than that supplied in the AAFES-MR-A letter.

Solicitation, Plaintiffs Exhibit B at 1.

The Chic style numbers provided in response to MR-A/2 were listed in the Solicitation as “Acceptable Styles”. Id. Plaintiff was not aware, at this point, that the Chic specifications did not meet those incorporated in the Solicitation. West apparently relied on Chic’s certification to indicate responsiveness. West Affidavit at 4.

Chic’s bid was the lowest. The contract was entered into on July 10, 1984. See Exhibit A, Plaintiff’s Brief. Plaintiff was eventually the fourth-lowest bidder.

In September of 1984, AAFES sent the Chic samples to an independent testing service. The results included the following statements: “[T]he test report clearly indicates that the Chic samples do not conform to the LM & M manufacturing specifications____ These differences in the overall garment construction qualities have caused considerable differences in the performance characteristics.” See Exhibit F, Plaintiff’s Brief. Other defects were subsequently noted.

The deficiencies were brought to Chic’s attention and were subsequently corrected. Spruill Affidavit at 4. It appears that Chic is now providing goods in conformity with the specifications.

Plaintiff seeks a preliminary injunction prohibiting further performance of the Chic-AAFES contract pending a trial on the merits. The usual standards governing injunctive relief apply, see John Carlo, Inc. v. Corps of Engineers, 539 F.Supp. 1075, 1079 n. 6 (N.D.Tex.1982), and the Court will address them seriatim.

Substantial Likelihood of Prevailing on Merits

To successfully challenge the legality of a procurement decision, a party must show either that:

(1) the procurement official’s decisions on matters committed primarily to his own discretion had no rational basis, or
(2) the procurement procedure involved a clear and prejudicial violation of applicable statute or regulations.

Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1271 (5th Cir.1978).

Plaintiff appears to focus on the second option. To secure a “fair, equitable and impartial” procurement policy, DOD Instruction No. 4105.67 at ¶ Dl, Plaintiff’s Exhibit G, joint Army and Air Force regulation AR 60-20/AFR 147-14, provides:

Evaluation of proposal. Proposals received as a result of a multiple source solicitation will be evaluated on the basis of responsiveness, competitiveness and responsibility.
Awards of contracts. Contracts will be awarded or issued only to those responsive and responsible offerors whose proposals are most advantageous, price, fee and other factors considered ...
(a) A responsive offer is an offer that satisfies all the requirements stated in the solicitation (oral or written), including, but not limited to, delivery schedules, quality, quantity, the price stipulations and specifications.

Exhibit G at 6.

The operational regulations are set forth in Exchange Service Procurement Instruction Manual 65-1, issued by the Commander of AAFES. Responsiveness is again highlighted as the foremost consideration in the awarding of the contract:

GENERAL GUIDELINES. The three basic factors for evaluating proposals are (1st) responsiveness, (2nd) competitiveness ... and (3rd) responsibility, to be accomplished in that order____ Award of contract will be made to the responsible prospective contractor whose offer is responsive to the solicitation and is most advantageous to AAFES and its customers, considering price/fee and/or other evaluation factors set forth in the solicitation.
RESPONSIVENESS. A proposal is responsive when it fulfills all of the requirements set out in the solicitation,
a. If a proposal ... doesn’t fully meet all requirements of the solicitation, the contracting officer will determine it nonresponsive and won’t consider it for award.

Exhibit G at 12-13.

These promulations carry the full force and effect of law. Standard Oil Co. v. Johnson, 316 U.S. 481, 484, 62 S.Ct. 1168, 1169, 86 L.Ed. 1611 (1942).

To permit a contracting officer to accept a bid deviating from quality specifications would render meaningless the whole procedure of competitive government contracting. Prestex, Inc. v. United States, 320 F.2d 367, 372 (Ct.Cl.1963). The prejudice to other bidders, such as Plaintiff, is clear. If Plaintiff was permitted to submit a bid on different specifications, it may have been able to underbid Chic. See Toyo Menka Kaisha, Ltd. v. United States, 597 F.2d 1371, 1377, 220 Ct.Cl. 210 (1979). Regardless of whether the government’s interest is now being served by the provision of complying goods under the contract, the unsuccessful bidders have a legitimate claim that Chic should not be the one supplying them. While it is speculation to suggest that Plaintiff would have received the contract absent the Chic-anery, it is also speculation to suggest that Chic would have remained the low bidder if it had understood and followed the specifications from the start.

Accordingly, given the indications of a clear and prejudicial violation of the applicable AAFES regulations, there is a substantial likelihood that Plaintiff will prevail on the merits. Kinnett Dairies, 580 F.2d at 1271.

Irreparable Harm

Although courts have stated that irreparable injury occurs when a bidder loses its opportunity to have its proposal fairly and equally considered, Georgia Gazette Publishing Co. v. U.S. Dept. of Defense, 562 F.Supp. 1004, 1007 (N.D.Ga.1983), this proposition is not intuitively satisfying. This opportunity is past, and the granting of Plaintiff’s requested injunctive relief will not restore it.

Plaintiff also suggests that a loss of anticipated profits from the award .of a government contract to an undeserving competitor constitutes irreparable injury. Minnesota Mining & Mfg. Co. v. Shultz, 583 F.Supp. 184, 191 (D.D.C.1984). The case relied on by 3M, however, is Dickey-John Corp. v. Bergland, 444 F.Supp. 451, 455 (D.D.C.1978). Judge Gasch wrote:

Plaintiff correctly notes that its action for money damages as a disappointed potential bidder would not include recovery of lost profits, but would be limited to recovery of bid preparation costs. Thus, plaintiff’s only adequate remedy for being improperly denied the opportunity to submit a responsive bid is a chance to bid after resolicitation. This argument, however, is not sufficient by itself to justify a preliminary injunction____

Plaintiff’s argument here is weaker than in Dickey-John. In Dickey-John, the contract was for ninety-five rear-infrared reflectance instruments for use by the Federal Grain Inspection Service. Such a purchase appears to be a one-time transaction; if the contract was performed pending the final judicial determination, the plaintiff’s opportunity to earn the profits on the transaction is irretrievably lost. Here, however, if performance were to be enjoined, the Court is of the opinion that the women’s hosiery market is such that consumer demand would merely cause substitution away from the depleted AAFES private label brand to other lines of hosiery during the operation of the injunction. In this event, the opportunity for Plaintiff to recapture the lost profit on the sales that would have been made pendente lite cannot be preserved for the outcome of resolicitation.

The preliminary relief is thus not necessary to “preserve the possibility of ordering resolicitation”, id. at 451, as would be the case with a one-time purchase contract.

In other words, the Court is of the opinion that the declaratory and equitable relief available pending final disposition of this matter would adequately redress Plaintiffs alleged injuries.

Balance of Equities

The equities favor the federal defendants. An injunction pending determination of resolicitation would not redress any injury being suffered by Plaintiff, and would disrupt the supply of hosiery to AAFES outposts worldwide. While the Court appreciates Plaintiffs offer “to timely provide products of the same high quality that it has provided in the past”, unless this offer is purely charitable, the Court is without authority to accept. It would also appear, as reasoned above, that any interim profits to be garnered by Chic would be funneled to other brands during the operation of an injunction, and not merely postponed pending a final determination.

The Public Interest

There is a strong public policy served by ensuring that government procurement officials follow appropriate procurement procedures and regulations. Georgia Gazette, 562 F.Supp. at 1011. Other than through retribution against errant officials, however, this public interest is not served by halting performance of the contract without contemporaneous resolicitation.

Preliminary injunctive relief is an extraordinary and drastic remedy. Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.1969), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). In addition to the usual caution surrounding the granting of such relief, the Court is mindful of the overriding concern in cases of this type: avoidance of disruptions in the procurement process absent a clear need for judicial intervention. John Carlo, Inc., 539 F.Supp. at 1080.

Accordingly, the Court is of the opinion that the preliminary injunctive relief of the nature requested should not be granted in this case. Plaintiffs Application will be DENIED, and the parties should proceed towards an expeditious final disposition.

SO ORDERED.

      . Plaintiff seeks a preliminary injunction “enjoining the AAFES defendants ... from placing any orders whatsoever with Chic for the hosiery products which are the subject of the Solicitation and further enjoining said defendants from taking delivery of any such products pursuant to the Contract.” Verified Complaint at 11.

      . In this regard, it appears that the final disposition of this matter might proceed expeditiously on the basis of motions for summary judgment.