author: CARL B. RUBIN, Chief Judge.

text:
    Deborah L. AVERY, et al., Plaintiffs, v. Robert JENNINGS, et al., Defendants.
    No. C-1-83-0099.
    United States District Court, S.D. Ohio, W.D.
    Jan. 16, 1985.

      Robert Newman, Cincinnati, Ohio, for' plaintiffs.
    James W. Harper, John A. Lloyd, Jr., Cincinnati, Ohio, for defendants.
   FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW

CARL B. RUBIN, Chief Judge.

This case is before the Court on cross motions for summary judgment (docs. 10 and 11), which present the Court with a difficult and novel question: Do the Defendants’ hiring practices impermissibly infringe upon the first and fourteenth amendment rights of the Plaintiff, who sought, but was not considered for, positions in which her political affiliation would not affect her job performance? Both parties have filed memoranda in opposition to the adverse motions (docs. 15 and 19), and plaintiff has filed a reply memorandum in support of her motions (doc. 20). The cross motions are therefore ripe for decision. S.D.Ohio R. 4.0.2.

I. Findings of Fact

(1) The plaintiff, Deborah Louise Avery, applied for a position in the defendants’ offices on December 21, 1982 by filing an application for employment with the Hamilton County Employee Services Office, in the Hamilton County Courthouse, Cincinnati, Ohio. That same day, plaintiff unsuccessfully attempted to introduce herself to each of the three defendants, Robert Jennings, Clerk of the Court of Common Pleas, John E. Held, County Recorder, and Joseph DeCourcy, Jr., County Auditor.

(2) A day or two later, plaintiff contacted Republican Party Headquarters to learn the name of the Republican Party Ward Chairman for her area. She was given the name of Hank Zureick, a bailiff at the Hamilton County Courthouse. Plaintiff telephoned Mr. Zureick, who asked her whether she was a Democrat or Republican, then told her it would not mean anything when she replied “Democrat.” Mr. Zureick informed the plaintiff that he was not the ward chairman for her area, and he referred her to Mr. James Gibson, Director of the Hamilton County Department of Employee Services. Although Mr. Zureick and other ward chairmen sometimes recommend persons for employment in the defendants’ offices, they have no hiring authority.

(3) Plaintiff contacted Mr. Gibson on December 23, 1982. He told her there were no job vacancies at that time.

(4) On December 29, 1982, plaintiff sent letters to all three defendants in which she introduced herself as a laid-off steelworker who had applied for a job through the personnel office. The letter requested an interview and accompanied a resume showing that plaintiff had actually been a clerical worker at a foundry, that she had both clerical and secretarial experience, and that she had an associate’s degree in secretarial studies. Plaintiff did not receive a reply from any of the defendants’ offices.

(5) Plaintiff called Mr. Zureick again on January 14, 1983 and told him that she was thinking of becoming a Republican. Mr. Zureick referred her to the ward chairman for her area, Tom Puckett. When plaintiff called Mr. Puckett, she spoke only to Mrs. Puckett, who asked her if she was looking for a job and warned her that there were no vacancies. Plaintiff did not talk to Tom Puckett.

(6) Plaintiff placed a third telephone call to Mr. Zureick, who denied that plaintiff would have to be a Republican to get a job at the courthouse, but said that when jobs did open up, “maybe a fellow Republican could help [her] out with a job” if she were affiliated “in some way” with the Republican Party. (Avery deposition at 39-40).

(7) Four days later, on January 18, 1983, the plaintiff filed suit against the three defendants, claiming that her political beliefs had disqualified her from consideration for employment in their offices.

(8) Plaintiff first registered to vote in 1976 and voted in the general elections in 1976 and 1977. As a result of her failure to vote in any general election after 1977, plaintiff’s name was removed from the list of registered voters on August 8, 1980. Plaintiff re-registered to vote on December 21, 1982. As of August of 1983, plaintiff had never registered to vote in a Democratic primary, but plaintiff considers herself a Democrat.

(9) Four weeks elapsed between the time plaintiff filed her application for employment and the time she filed suit against the defendants. During that time period there were no job vacancies for clerical or secretarial positions in any of the three defendants' offices, or in any other office in the Hamilton County Courthouse. Between the date the suit was filed in January of 1983 and the end of September of 1983, vacancies in all three defendants’ offices were filled, without considering applications on file with the Employee Services Office.

(10) Defendant Held has been the Hamilton County Recorder since 1974. His office employs approximately thirty to thirty-six people. No vacancies ever occur, as such, but when the work load gets too heavy, a new person is hired. Such a position would not be publicly advertised, nor would the Hamilton County Employee Services Office be contacted for applications. Positions are filled with persons who have been personally recommended to defendant Held by people he knows, other employees, ward chairmen of both political parties, judges, and the heads of other departments in the courthouse. Prospective employees are interviewed by Mr. Held or his Chief Deputy, and the final hiring decision is always made by Mr. Held. A person applying for a job in Mr. Held’s office is not asked her political preference, and a person who volunteered that she was a Democrat would not thereby be excluded from employment. Mr. Held’s office has employed Democrats.

(11) Defendant Jennings has been the Clerk of Courts since 1961, when he was appointed to fill an unexpired term. He has since been elected six times. Job vacancies in Mr. Jennings’ office are filled both through personal recommendations and through the Hamilton County Employee Services Office. Republican Party Headquarters does not refer prospective employees or send cards signed by Republican ward chairmen. Job openings are not advertised publicly. An applicant meets with both Mr. Jennings and Bob Rudig, the Administrator of the Office. Neither man asks the applicant her political preference. Mr. Jennings prefers to hire Republicans, because he wants employees who are loyal to him, and he assumes that most people who refer applicants to him refer Republican applicants. Once employed, employees are not required to contribute to the Republican Party or to work for the re-election of Mr. Jennings or other Republican office holders. Mr. Jennings’ office has employed Democrats.

(12) Defendant Decourcy has been the County Auditor since 1971. When a vacancy occurs in the auditor’s office, Mr. De-Courcy tries to fill it by promoting a present employee. If that is not possible, and if the job is a non-technical one, he consults with his employees to determine whether they know of anyone they could recommend. If that course fails, Mr. De-Courcy tells the supervisor of the department with the job opening to call the Employee Services Office to send people over to interview. Although the ultimate hiring decision is made by Mr. DeCourcy, the supervisor does the interviewing and evaluating of prospective employees. When an applicant has been informally referred to the auditor’s office, Mr. DeCourcy will meet with the person first. When an applicant has been referred by the Employee Services Office, the supervisor of the department conducts the initial interview. Republican Party Headquarters plays no role in suggesting or recommending people for employment in the auditor’s office, nor does it send employment cards signed by ward chairmen. No one in the Auditor’s office checks the voting record of prospective employees. Mr. DeCourcy would prefer to have Republicans working for him because he assumes Republican employees would be more, interested in helping him get re-elected. Although people who refer job applicants may mention the prospective employee’s political affiliation, Mr. DeCourcy and his supervisors do not discuss political activity or political loyalty of job applicants. Once employed, employees are not encouraged to contribute to the Republican Party. Mr. DeCourcy’s office has employed Democrats.

(13) All three defendants employ persons with qualifications similar to the plaintiff’s to fill a number of clerical and secretarial positions. Defendant Held was in Florida when plaintiff’s letter to him arrived in his office, and he did not see it until after plaintiff filed this suit. Defendant Jennings never received plaintiff’s letter, although he did see the copy attached to the complaint. Defendant DeCourcy recalled talking to the plaintiff and telling her to apply through the Employee Services Office, but he never saw the letter that plaintiff sent to his office. Mr. Held could not tell without talking to the plaintiff whether she would be qualified to work in his office. Mr. Jennings thought plaintiff’s resume indicated that she was qualified to do a number of jobs in his office, but that she would not be considered because she had filed suit against him. Similarly, Mr. DeCourcy stated that he would not consider hiring the plaintiff because she had filed suit and was antagonistic towards his office.

(14) According to James Gibson, the county’s Board of Commissioners laid off fourteen employees, four of them clerical workers, in the month in which plaintiff filed her application. There were no job vacancies at that time, and the laid-off employees would have been considered first for any openings that might have occurred in anyf county office.

II. Opinion

The first question which the Court must decide on a motion for summary judgment is whether the pleadings, depositions, answers to interrogatories, admissions, and affidavits on file with the Court reveal any genuine issue as to any material fact. Fed. R.Civ.P. 56(c). If any such issue is found, the motion must be denied, for the Court deciding a Rule 56 motion cannot try issues of fact but may merely determine whether they exist. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). In the instant ease, the parties agree that there are no factual disputes remaining and that summary judgment is appropriate.

A few of the factual allegations in plaintiff’s complaint have been disproved through the discovery process; for example, the complaint alleges that plaintiff’s ward chairman asked her whether she was a Democrat or a Republican, but plaintiff’s own deposition indicates that she never spoke to the ward chairman for her area. Similarly, the complaint states that applicants for employment in county offices müst be recommended by the appropriate party precinct executive and approved by the appropriate ward chairman, through use of a card indicating political preference. All three defendants stated that they did not accept the cards from prospective employees and that the cards were not considered in the hiring process.

There are a few other examples of conclusory factual allegations that were made in the complaint but disproved through the depositions of the plaintiff and the defendants. Plaintiff has produced no evidence to support these allegations in the complaint, so the apparent factual conflict between the complaint and the other facts on file will not require the Court to find that any genuine issues of material fact still remain to be tried. Rule 56 requires that the party opposing a motion for summary judgment set forth “specific facts showing that there is a genuine issue for trial.” Summary judgment is still possible where the plaintiff’s conclusory allegations in his complaint and affidavit are insufficient to rebut the evidence offered by the defendants. Patmon v. Van Dorn Co., 498 F.2d 544, 547 (6th Cir.1974); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980) (party opposing the motion “must bring to the district court’s attention some affirmative indication that his version of relevant events is not fanciful.”) And, although summary judgment is often inappropriate where issues of intent and motive are involved, as they are in this case, summary judgment should be granted if there are no issues of fact left to be determined. Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 69 (6th Cir.1982) (affirming grant of summary judgment for defendant in age discrimination suit).

Neither party has pointed out, nor can the Court find, any genuine issue of material fact remaining to be tried in this case. Summary judgment is therefore appropriate, and the Court must decide which of the moving parties is entitled to judgment as a matter of law.

The plaintiff’s cause of action is premised upon the basic principle that the government may not deny a person a valuable benefit, such as employment, on a basis that infringes her constitutionally protected interest in freedom of speech. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1971); Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S.Ct. 675, 684-85, 17 L.Ed.2d 629 (1967).

A public employee’s first amendment rights are not unlimited, however. In Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), the Supreme Court recognized that the state, as an employer, had an interest in regulating the speech of its employees, and that it was necessary to balance the interest of the state in promoting efficient public service against the interest of the employee in commenting upon matters of public concern. In that case, a teacher was impermissibly discharged for writing and publishing a letter critical of his employer; although the letter contained misstatements, no showing was made that the employee knowingly or recklessly made the false statements. Id. at 574, 88 S.Ct. at 1737.

Statements made in private are entitled to no less protection under the first amendment, according to Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619 (1979). In Givhan, the employee’s criticism of the school’s practices were directed to the principal, in his office. The Court held that this private expression deserved the same balancing of interests as that afforded the public expression in Pickering; the Court also noted, however, that the elements to be weighed in the balance might be different. Id. at 415 n. 4, 99 S.Ct. at 696 n. 4. Those factors — manner, time, and place of the expression — were considered in the balance of interests in Connick v. Myers, 461 U.S. 138, 153, 103 S.Ct. 1684, 1693, 75 L.Ed.2d 708 (1983). First, the Court found that most of the questionnaire, the distribution of which precipitated the employee’s dismissal from public employment, was not directed to matters of public concern; only the one question that was on a matter of public concern entitled the employee to scrutiny of her discharge by a federal court. Id. at 146-47, 103 S.Ct. at 1689-90. The Court weighed the nature of the expression, the impediment the expression caused in the employee’s ability to perform her responsibilities, the disruption of the public office, the place in which the questionnaire was distributed, and the context in which the expression took place. In light of all these elements, the Court characterized the questionnaire as an employee grievance over office policy, which was entitled to very limited first amendment protection. Weighing that minimal protection against the effects of the questionnaire, which were to undermine office relationships, erode the employer’s authority, and disrupt the office, the Court held that the employee’s discharge did not offend the first amendment. Id. at 154, 103 S.Ct. at 1693.

A balancing test similar to that articulated in Pickering was employed by the Supreme Court in its first of two opinions invalidating discharges of public employees on the basis of their political beliefs or affiliation. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a fragmented Court struck down the practice of the Sheriff of Cook County, Illinois, of replacing non-civil-service employees in his office with members of his own political party, if the existing employees were not members of, or supported by a leader of, the newly-elected Sheriff’s own party. Justice Brennan wrote the plurality opinion, which held that patronage dismissals were inconsistent with the first amendment, as they indirectly deny a person his constitutionally-protected rights of free speech and association. Id. at 358-59, 96 S.Ct. at 2682-83. Recognizing that the prohibition against encroachment of first amendment protections is not absolute, however, Justice Brennan examined the interests offered as justifications for continuation of the patronage dismissal practices at issue in Elrod, weighed them against the infringement upon first amendment rights posed by the dismissals, and concluded that the only valid justification offered was the need to insure that the policies approved by the electorate are effectively implemented, thus the only permissible patronage dismissals were those in policymaking positions. Id. at 372, 96 S.Ct. at 2689. Justices Stewart and Blackmun, whose votes were necessary to the plurality decision, contributed an extremely short opinion concurring in the judgment, but declining to join the plurality’s blanket condemnation of the patronage system. In particular, Justice Stewart refused to offer any views on the “constitutional validity of a system that confines the hiring of some governmental employees to those of a particular political party.” Id. at 374, 96 S.Ct. 2690 (emphasis added).

In the second of the two patronage cases, Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Court refused to limit Elrod to cases in which employees are threatened with discharge unless they change their political allegiance, holding instead that the employees need only prove that they were discharged “solely for the reason that they were not affiliated with or sponsored by” the employer’s political party. 445 U.S. at 516-17, 100 S.Ct. at 1293-94. Indeed, rather than limiting the holding of Elrod, the Court limited the exception expressed in Elrod allowing consideration of party affiliation where the position involved policymaking. After Branti, the only exception to the ban on patronage dismissals applies to positions in which party affiliation is an “appropriate requirement for the effective performance of the public office.” Id. at 518, 100 S.Ct. at 1294. As the positions involved in that case were as assistant public defenders, the Court held the discharges violative of the first amendment. Id. at 519-20, 100 S.Ct. at 1295-96.

Together, the Elrod and Branti cases represent a very narrow subclass of the cases involving discharge from public employment as a result of the exercise of first amendment rights. Where the discharge of a public employee is based solely on her political affiliation, the Supreme Court has already performed the required balancing of interests and determined that the only governmental interest sufficient to justify such a discharge is the need to insure that the will of the electorate is carried out. Therefore, unless party affiliation affects the discharged employee’s ability to effectively perform her job, a politically-motivated discharge represents an impermissible infringement on the employee’s first amendment rights. No decided case, however, has extended the rationale of these two cases to a situation involving an employment decision other than a discharge, although one circuit has held that Elrod and Branti may apply to invalidate a transfer and reassignment that was the “substantial equivalent of dismissal.” Delong v. United States, 621 F.2d 618, 624 (4th Cir.1980). Furthermore, recent Supreme Court treatment of Elrod and Bran-ti evidences no desire to extend the application of those cases beyond their particular facts. E.g., Connick, 461 U.S. at 149, 103 S.Ct. at 1691 (citing only for the proposition that employees may not be coerced into working for political candidates); Minnesota State Board v. Knight, 465 U.S. 271, -, -, 104 S.Ct. 1058, 1067, 1078, 79 L.Ed.2d 299 (1984) (citing Justice Powell’s dissent in Branti).

To recognize the plaintiff’s claim that the defendants’ failure to hire her, allegedly on the basis of her political affiliation, was an encroachment on her first amendment rights under the line of cases discussed above would require, therefore, a broad and unwarranted extension of those cases beyond their facts and precedential effect. The facts of the instant case simply do not bring it within this particular subclass of cases. Absent any persuasive arguments in favor of extending the applicability of Elrod and Branti to cases involving employment decisions other than discharges, this Court declines to do so. The plaintiff’s case will, therefore, be decided under broader precepts of first amendment rights of public employees.

In pleading her case, plaintiff has focused on the general principle of Keyishian and Perry and the specific application of Elrod and Branti. Little focus has been put upon the limitations and the balancing reflected in Pickering, Givhan, and Connick. More importantly, however, the plaintiff has ignored another principle that must be factored into any examination of the interplay between a public employee’s first amendment rights and a public employer’s interest in maintaining an effective work force: “The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct.” Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (unanimous decision).

In the Mt. Healthy case, a nontenured teacher’s contract was not renewed following several instances of conduct, at least one of which was protected under the first amendment. The teacher brought suit, and the district court found that since his protected activity played a substantial part in the decision not to renew his contract, his constitutional rights had been violated. The Supreme Court found that the district court’s analysis stopped one step short of completion: After the discharged employee shows that his conduct was constitutionally protected and that the conduct was a substantial factor in the decision not to rehire him, the burden of proof shifts to the defendant to show that it would have reached the same decision in the absence of the protected conduct. Id. at 287, 97 S.Ct. at 576. As the lower courts had not applied the entire test, the Supreme Court vacated their judgments and remanded the case.

The three steps in the Mt. Healthy analysis were laid out and described in some detail in Reichert v. Draud, 701 F.2d 1168, 1170 (6th Cir.1983), citing Hildebrand v. Board of Trustees, 662 F.2d 439, 442-43 (6th Cir.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982):

(1) The threshold question is whether the plaintiff’s conduct deserves constitutional protection.
(2) If the court finds that an employee’s conduct was protected by the first amendment, the finder of fact must determine whether [the action taken was] because he engaged in the protected conduct. The employee’s protected conduct must be a “substantial factor” or a “motivating factor” in the employer’s decision.
(3) Once the employee meets this burden [as outlined in 2 above] the burden is on the employer to prove that the action the employee is complaining about would have taken place absent the protected conduct, (citations omitted).

In Hildebrand, a teacher at a state university was denied tenure after he had criticized the curriculum and run for a position on an advisory committee at the university. The Sixth Circuit assumed, without deciding, that the faculty member’s activities were protected by the first amendment, but held that the evidence produced by the university clearly showed that the faculty member’s denial of tenure was not based upon his exercise of rights. Id. at 444. The Court reached a similar conclusion in Reichert, where a teacher claimed that schedule changes were the result of her protected activities as president of the teachers’ association. Again, the Court made no specific finding as to the protected status of the conduct involved, but held that the plaintiff had failed to show that the conduct played a substantial part in the decision to change her schedule. 701 F.2d at 1171. Applying the three-part test of Mt. Healthy to the plaintiff’s case leads this Court to the same conclusion reached by the Sixth Circuit in both Reichert and Hildebrand.

(1) Conduct. The right to associate with the political party of one’s choice is an activity protected by the first and fourteenth amendments. Kusper v. Pontikes, 414 U.S. 51, 56-67, 94 S.Ct. 303, 307-13, 38 L.Ed.2d 260 (1973). In light of the particular facts of this case, however, defendants argue that there have been no protected activities by the plaintiff. Although plaintiff claims to be a registered Democrat, she has never actually registered to vote in a primary, nor, in fact, had she voted in the general elections in the years immediately preceding the filing of this suit. However, the plaintiff now alleges that she is a Democrat, and that she wishes to remain a Democrat, even if employed by the defendants; although the defendants question the strength of plaintiff’s political commitment, they offer no evidence to refute her claims of allegiance. The Court will assume, therefore, that plaintiff has met her burden of proof as to the first prong of the test.

(2) Substantial Factor. The second prong of the test requires the plaintiff to prove that her protected conduct was a “substantial” or “motivating” factor in the defendants’ failure to hire her. “That burden is not insignificant. A disgruntled employee fired for legitimate reasons would not be able to satisfy his burden merely by showing that he carried the political card of the opposition party or that he favored the defendant’s opponent in the election.” Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed. 139 (1982). Mere proof that some protected conduct took place is not sufficient to meet the burden obviously, for in both Reichert and Hildebrand the plaintiffs had engaged in activities that were arguably related to their first amendment rights to associate freely and express their opinions on matters of public concern. At the very least, it seems apparent that the plaintiff must prove that the decision-makers knew of the protected activity. The predicate requirement of knowledge has been recognized by the Third Circuit. In Laskaris v. Thornburgh, 733 F.2d 260 (3d Cir.1984), a discharged public employee presented evidence that his replacement was a Republican, as were the defendants in the case. Without sufficient evidence that any of the defendants even knew that plaintiff was a Democrat, the fact of the replacement’s political affiliation would not in itself support an inference that the plaintiff’s discharge was politically motivated. The court held, therefore, that the plaintiff had failed to establish that his political affiliation was a substantial or motivating factor behind his discharge. Id. at 265-66.

Plaintiff concedes that none of the defendants asked if she was a Republican or a Democrat, that no one in any of their offices so inquired, and that she did not volunteer that information to them. The only person who posed that question to plaintiff was a ward chairman for a ward other than plaintiff’s, but that gentleman plays no part in the hiring practices of the defendants’ offices, other than to occasionally recommend persons for employment, as do other of the defendants’ friends and co-workers. Even if the defendants had tried to learn of plaintiff’s political associations through public records, they would have found only that plaintiff had never registered to vote in a Democratic primary election. Plaintiff has produced absolutely no evidence that any defendant knew of her political affiliation during the time period between the filing of her job application and the filing of this lawsuit. Therefore, the Court holds that the plaintiff has not met her burden of proof on the second prong of the Mt. Healthy analysis; there is no evidence on this record that plaintiff’s conduct, her political affiliation with the Democratic Party, was a substantial factor in plaintiff’s failure to obtain employment in any of the defendants’ offices.

(3) Showing by Defendants. Even if plaintiff had met the burden required of her under Mt. Healthy, the Court holds that the defendants have shown by a preponderance of the evidence that their failure to hire plaintiff would have occurred even absent her protected conduct. Clerical workers were actually laid-off in the month in which plaintiff filed her application; these people would have been given the first opportunity to fill any vacancies that might have occurred. However, there were no vacancies during the relevant time period. In addition, none of the defendants even saw the letters sent to them by plaintiff until after she had filed her lawsuit, so none of these potential employers had been given any opportunity to consider plaintiff for employment in their offices. The failure to hire plaintiff was a result of the lack of vacancies and the lack of opportunity to consider her for employment. On the facts of this case, plaintiff’s political affiliation actually played no part in her failure to find employment with the defendants.

Although plaintiff’s complaint alleges violations of the fourteenth amendment as well as the first, no separate equal protection argument was made in any of plaintiff’s pleadings. For the same reasons that the Court finds no violation of the plaintiff’s first amendment rights, we would also find no violation of the plaintiff’s fourteenth amendment rights. Plaintiff has not produced any evidence that she has been treated differently as a result of her association with the Democratic Party.

III. Conclusions of Law

(A) Jurisdiction over this suit brought under 42 U.S.C. § 1983 is conferred upon this Court by 28 U.S.C. § 1343(3) and (4).

(B) Elrod and Branti represent a very narrow subcategory of cases involving first amendment rights in the public employment area; these cases are applied only where a public employee has been discharged solely because of his or her political affiliation. No cause of action has yet been recognized under these two cases for a failure to hire because of political affiliation.

(C) Plaintiff failed to establish that her political affiliation was a substantial factor behind her inability to obtain employment with the defendants; she therefore failed to meet her burden of proof under the Mt. Healthy case. Even if she had met this burden, and the burden of proof had then shifted to the defendants, the defendants produced uncontr'overted evidence sufficient to meet their heavy burden of showing that plaintiffs inability to obtain employment would have remained the same in the absence of the protected conduct. Plaintiff has failed, therefore, to establish any infringement upon her first or fourteenth amendment rights.

(D) In accordance with conclusions (A), (B), and (C) above, the plaintiffs motion for summary judgment is denied, and the defendants’ is granted.

IT IS SO ORDERED.

      . The Court will take judicial notice of the fact that the three defendants are Republicans. See, Fed.R.Evid. 201.

      . There is no dispute, however, that the positions for which plaintiff applied were not positions in which political affiliation is an appropriate job qualification.

      . Plaintiff brought her suit as a class action, and the motion to certify the class is pending at this time. However, as the Court holds that this plaintiff has failed to establish any infringement on her first amendment rights and that no court has ever recognized the cause of action asserted on behalf of the class, the class allegations in the complaint and the unresolved motion to certify the class present no impediment to this Court’s deciding this case on its merits. Marx v. Centran Corp., 747 F.2d 1536, 1552 (6th Cir.1984) ("It has never been doubted that a complaint asserting a class action could be dismissed on the merits before determining whether the suit could be maintained as a class action.).


source: Caselaw Access Project

author: ROBERT J. McNICHOLS, Chief Judge.

license: Public Domain

text:
    Stephen L. KINSEY and Dawn G. Kinsey, husband and wife, Plaintiffs, v. NESTOR EXPLORATION LTD.—1981A, a Texas limited partnership; Nestor Petroleum Company, a Texas corporation; Nestor D. Phillips and Geraldine A. Phillips, husband and wife; Al E. McClellan and Betty McClellan, husband and wife; Reid E. Renken and Cleo Renken, husband and wife; Tommy E. Morris and Jimmie Claudine Morris, husband and wife; Darrell D. Patrick and Alpha J. Patrick, husband and wife; Frank V. Bradley and Mary Beth Bradley, husband and wife; and Shearson American Express, formerly Shearson Loeb Rhoades, Inc., a foreign corporation; Warren Styner and Norma A. Styner, husband and wife, Defendants.
    Nos. C-84-308, C-84-382.
    United States District Court, E.D. Washington.
    Feb. 14, 1985.

      Robert J. Reynolds, Powers & Therrien, P.S., Yakima, Wash., for plaintiffs.
    David A. Thompson, Halvorson, Appelgate & McDonald, Yakima, Wash., for defendants.

      . "In construing a statute, it is the duty of the court to give significance to every word, phrase, sentence and part of an act in pursuance of the legislative purpose, and to give effect to the statute as a whole____" Matter of Borba, 736 F.2d 1317, 1320 (9th Cir.1984).

   ORDER

ROBERT J. McNICHOLS, Chief Judge.

On April 30, 1984, C-84-308 was commenced in this Court. On May 3, 1984, presumably in an attempt to cover all the bases in recognition of the jurisdictional quagmire which tends to ensnare litigants in the federal system, a virtually identical suit was brought in Yakima County Superi- or Court. That action was thereafter removed and assigned cause number C-84-382. For present purposes, these suits need not be described in any great detail. Suffice it to say that these actions each allege securities fraud involving two distinct sets of defendants who will be characterized here as “the Washington defendants,” and “the Texas defendants.” All defendants have moved for consolidation and for dismissal of various claims and parties.

It should be noted at the outset that none of the jurisdictional issues addressed below have been raised by the parties. It is well-settled, however, that “a federal court is duty-bound to determine its proper jurisdiction on its own motion.” In re Martinez, 721 F.2d 262, 264 (9th Cir.1983).

I. C-84-382

Notwithstanding the virtually complete identity of these two suits in terms of factual allegations and complement of parties, • this removed action presents its own unique problems and will be dealt with first. In characterizing a cause of action for jurisdictional purposes, it is the gravamen of the underlying transaction which must be considered, and not the remedy asserted. As noted in Guinasso v. Pacific First Fed. Sav. & Loan Ass’n, 656 F.2d 1364 (9th Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1716, 72 L.Ed.2d 138 (1982):

A suit may arise under federal law, even though a federal remedy is not sought, if the plaintiff’s claim relies substantially on propositions that define federal rights, duties, or relationships.

Thus, even though plaintiff in the instant case seeks remedies provided under state law, the Court is required to go further, and to ask what the alleged wrong is, what duty was breached, and from what source that duty arose. Fortunately, this is not a difficult task, given the fact that plaintiff relies expressly and explicitly upon predicate violations of federal securities law in framing a number of the asserted causes of actions.

Counts I, II and VIII allege violations of various statutes, and regulations promulgated thereunder, found in the Securities Exchange Act of 1934 [hereinafter the “1934 Act”]. So viewed, any issue over subject-matter jurisdiction must be resolved with reference to 15 U.S.C. § 78aa which provides:

The district courts of the United States ... shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity or actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. [Emphasis added].

It is well-settled in the Ninth Circuit that the language quoted above means just what it purports to. Federal jurisdiction is exclusive. See, e.g., Clark v. Watchie, 513 F.2d 994, 997 (9th Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). Since removal jurisdiction is derivative in nature; i.e., a federal court to which an action is removed acquires no greater jurisdiction than was initially vested in the state court, then it necessarily follows that those counts of the complaint falling within this category must be dismissed for lack of subject-matter jurisdiction. Salveson v. Western States Bankcard Ass’n, 731 F.2d 1423, 1431 (9th Cir.1984).

Counts III, IV, V and VI allege violations of the Securities Exchange Act of 1933 [hereinafter the “1933 Act”]. The jurisdictional statute governing these claims is 15 U.S.C. § 77v, which provides:

The district courts of the United States ... shall have jurisdiction of offenses and violations under this subchapter and under the rules and regulations promulgated by the Commission in respect thereto, and, concurrent with State and Territorial courts, of all suits in equity and actions at law brought to enforce any liability or duty created under this subchapter____ No case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. [Emphasis added].

The Court is aware of no published decision which has deviated from the plain, literal meaning of the non-removability clause. Clearly, the above-referenced counts are not subject to removal under 28 U.S.C. § 1441(a). That observation, however, does not answer the question of whether an alternative basis for removal exists under 28 U.S.C. § 1441(c):

Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its jurisdiction.

The Ninth Circuit does not appear to have spoken to the precise question raised. The Court finds persuasive, however, the analysis employed in Abing v. Paine, Webber, Jackson & Curtis, 538 F.Supp. 1193 (D.Minn.1982). In Abing, the plaintiff had filed the type of shotgun complaint which seems endemic to securities litigation, stating seven causes of action, one of which was based on an alleged violation of the 1933 Act. Defendant removed, and plaintiff thereafter brought a motion to remand. In a brief but thoughtful analysis, the Court concluded that “there must be more than separable controversies to permit removal under section 1441(c).” Id. at 1196. Relying on American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), the Abing court held that:

Like Finn, the plaintiffs here have suffered but one loss. Despite the presence of at least six theories upon which the plaintiffs may have a right to recover, they may recover their loss only once. The single primary right the plaintiffs assert is the right to be dealt with in an open, fair, and professional manner in their business transactions. The claims predicated on the Investment Advisors Act of 1940 and the Investment Company Act of 1940 are not separate and independent from the remainder of the claims. Therefore, removal under 28 U.S.C. § 1441(c) is improper.

Id. at 1197.

So finding, the Court remanded the entire action, including those claims predicated on the 1940 Acts referenced above. For a parallel decision in a non-securities context, which exhaustively analyzes identical issues and comes to a similar conclusion, see Gonsalves v. Amoco Shipping Co., 733 F.2d 1020 (2nd Cir.1984).

Having accepted the analysis and conclusions of Abing and Gonsalves, supra, as persuasive, the next task is to determine whether the instant complaint contains a “separate and independent claim.” Clearly, Counts I, II and VIII cannot be considered, for these have been dismissed. Nor can Counts IX, X, XI, XIII or XIV meet the requisites of § 1441(c), for these are all based solely upon state law, and thus “would [not] be removable if sued upon alone.” Nor can Count VII be viewed as a viable basis, consisting as it does of a mixed bag of 1933 and 1934 claims. That leaves only Count XII, the RICO claim, which alleges violations under 18 U.S.C. § 1961 et seq.

One might validly raise a threshold contention as to whether the states have concurrent jurisdiction over federal RICO claims. If jurisdiction is exclusively federal, then Count XII must suffer the same fate of dismissal as did those counts predicated upon the 1934 Act. If concurrent, and the claim would therefore be amenable to removal, then it would at that point be necessary to proceed to an inquiry of whether the RICO count is a “separate and independent” claim within the meaning of § 1441(c).

Such limited authority as exists is badly split on the question of concurrent versus exclusive jurisdiction. Thus far, it would appear that only one state has asserted such authority, at least in a published opinion. Greenview Trading Co. v. Hershman & Leicher P. C., 123 Misc.2d 152, 473 N.Y.S.2d 722 (N.Y.Sup.Ct.1984). Federal decisions are equally sparse, and the two which have been reported have come to diametrically opposed conclusions. Compare, County of Cook v. Midcon Corp., 574 F.Supp. 902, 911-12 (N.D.Ill.1983) (exclusive), with, Luebke v. Marine Nat’l Bank of Neenah, 567 F.Supp. 1460, 1462 (E.D.Wisc.1983) (concurrent). Research does not disclose any appellate precedent on point.

It is a fairly safe wager that Washington does not believe its courts have concurrent jurisdiction. Otherwise, the legislature would not have deemed it necessary to enact the State’s own “Little RICO,” codified at R.C.W. ch. 9A.82 (eff. July 1, 1985). Be that as it may, the test for ascertaining whether concurrent or exclusive jurisdiction is the rule where Congress has been silent on the question is a matter of federal law.

While precedent on direct point is unavailable, the Ninth Circuit has furnished the trial courts with a decision rich in guidance on the issue presented. The Court recently held in Valenzuela v. Kraft, 739 F.2d 434 (9th Cir.1984), that jurisdiction over Title VII actions is vested exclusively in the federal system. Starting with the premise that concurrent jurisdiction is presumed in the face of congressional silence, the Court proceeded to find implicit legislative intent geared toward exclusivity on two fronts. First, the underlying statute contained references to procedural mechanisms which were available only in the federal system. Second, throughout the statute’s legislative history, there is no reference to any possibility that a Title VII action could be maintained in a state court.

In the instant case, if one views the statutory scheme dealing with RICO broadly, then there are most assuredly indicia militating in favor of exclusivity. See 18 U.S.C. § 1961 (predicate acts defined in terms of substantive federal crime); § 1963 (criminal prosecutions exclusively federal by unmistakable implication); § 1965 (extended venue and process provisions applicable only in federal courts); § 1966 (only United States Attorney empowered to act thereunder); § 1967 (limited to actions involving the United States); and § 1968 (only Attorney General may act thereunder). On the other hand, if one views RICO narrowly, and focuses instead only on the section affording the citizenry a private right of action; i.e. § 1964(c), there is absolutely nothing in the statutory language which would direct a conclusion of either exclusivity or concurrence. Nor is such legislative history as is available particularly helpful. See 1970 Code Cong. & Ad.News, p. 4007 et seq.

Notwithstanding the presumption in favor of concurrent jurisdiction, as mandated under Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981), this Court does not believe it appropriate to dissect a statutory scheme, select one narrow provision thereof, and determine that with respect to that one provision at least, congressional silence is the equivalent of an affirmative grant of jurisdiction to the states which creates substantive and remedial rights unknown in the common law. Rather, where overall congressional intent is patently obvious; viz., to halt expansion of organized racketeering activities, it would seem more desirable, if not jurisprudentially required, to read all RICO provisions in pari materia, and to conclude that Congress could not have intended the untoward result of creating a wholly new cause of action triable in state courts across the country, while at the same time mandating that federal substantive law governs such actions, and at the same time reserving exclusively to the federal government the procedural power necessary to implement the underlying objective. Accordingly, this Court holds that federal jurisdiction over RICO claims is exclusive.

Having so concluded, what follows might fairly be construed as gratuitous dicta. Nonetheless, to allay any suspicions that the foregoing discussion was result-oriented, it should be pointed out that even if Count XII were properly removable, such claim would still not satisfy the “separate and independent” requirements of 28 U.S.C. § 1441(c), and this action would still remain subject to remand.

Two modes of addressing the topic suggest themselves. The first is to compare the transactional facts alleged in Count XII with those alleged in connection with the 1933 Act claims. A facial perusal of the complaint readily yields the answer. After incorporating Count I by reference (as do three of the four 1933 Act claims), Count XII proceeds to merely plug in the requisite magic language alleging elements of interstate commerce, a pattern of fraud, and receipt and use of income derived therefrom. Without doubt, viewed from a transactional standpoint, every claim asserted is so mutually intertwined with one another as to preclude categorization as either separate or independent of the other.

The second mode which merits examination is to look to the remedy available for the conduct complained of, rather than to the conduct itself. The recovery provisions of 18 U.S.C. § 1964(c), which embrace, inter alia, treble damages, are obviously more attractive to a plaintiff in terms of recovery than are those remedies available under the 1933 Act.

Research has not revealed any reported decision on point. This Court is inclined to believe, however, that were the question put squarely before the Ninth Circuit, it is the first mode of analysis which would be adopted. Cf. Byrd v. Dean Witter Reynolds, Inc., 726 F.2d 552 (9th Cir.), cert. granted, — U.S. -, 104 S.Ct. 3509, 82 L.Ed.2d 818 (1984). Having concluded that neither the requisites of 28 U.S.C. § 1441(a) or 1441(c) have been met, this action will be remanded pursuant to § 1447(c).

II. C-84-308

Counts I, II, and VIII allege violations of the 1934 Act. Facially, jurisdiction is properly laid in this Court. Counts III, IV, V and VI allege violations based on the 1933 Act. These too are properly before the Court, as is Count VII which combines claims based on both the 1933 and 1934 Acts. Count XII is a RICO claim, and it also is facially proper in terms of subject-matter jurisdiction. Counts IX, X, XI, XIII and XIV are pendent state claims.

Up until recently, it has been common practice in this District for the Court to exercise its power to take jurisdiction over pendent claims without an inordinate amount of consideration given to the well-settled proposition that the decision to use such power is wholly discretionary:

The court must first decide whether the state and federal claims present a “common nucleus of operative facts so as to constitute but one constitutional case”; such a determination gives the court the power to assume jurisdiction. Second, the court must consider whether, in the exercise of its discretion, it should assert that power. The discretionary factors weighing against the assumption of jurisdiction include the possibility of jury confusion, ... the ground upon which the district court in this case relied. Thus, the power of a federal court to hear a pendent state claim need not be exercised in every case.

Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1287 (9th Cir.1984).

A plaintiff has no vested right to have pendent claims heard in conjunction with those of a federal nature, but nonetheless has generally enjoyed such benefit because of the widely-held view that substantial economies accrue thereby to both litigants and the judicial system. A recent experience with a trial involving alleged securities fraud, quite similar to the instant suit in fact, has given the Court reason to re-evaluate that liberal approach.

The case referenced will not be cited, and if anyone reading this memorandum should recognize it, the Court would hasten to add that both counsel did a competent and credible job for their respective clients. But they, as was the Court, were trapped into a nightmare where the instructions, despite long hours of hard work, were virtually incomprehensible to a jury of laypersons. The problem lay in the fact that the precise same transactional facts gave rise to potential liability under both 10b-5 and R.C.W. ch. 21.20. The federal regulation requires scienter; and the state statute, given Washington’s unique construction, does not. See Kittilson v. Ford, 93 Wash.2d 223, 608 P.2d 264 (1980).

Thus, the jury was treated to two parallel sets of instructions governing elements, definitions, vicarious liability and affirmative defenses: one of which advised the jury that it must find scienter in order to impose liability; and one of which did not. The form of verdict required eleven special interrogatories to ensure that the jury employed the analysis it was required to under the law.

True, it may have been possible for counsel to stipulate that only the state claims need be instructed upon since, for all practical purposes, these were subsumed into the federal claims in any event, and since the remedies available under the state claims were as good, or better, than those provided under the federal scheme. There was fear on the part of all concerned, however, that an appellate panel might look at this scenario and conclude that the federal claims had been abandoned, thereby raising the specter of jurisdictional dilemmas which' boggle the imagination. But see, Aydin Corp. v. Loral Corp., 718 F.2d 897, 903-04 (9th Cir.1983). True, a special interrogatory on the lone element of scienter could have been propounded, but again, both plaintiff and defendant were leary of the type of speculative confusion this might have engendered in the minds of the jurors.

Beyond the potential for confusion, there is a substantial policy reason why it may be inherently unwise to try federal and state claims together in the securities context, at least in Washington; and that is because in the final analysis, given the different scienter requirements, the federal claims ultimately serve no function other than as a jurisdictional hook to bring the action in this Court. The vast body of law developed by Congress and the federal judiciary over the past fifty-odd years thus serves no substantive purpose. This result can only be viewed as a perversion of the function and role of federal courts which are, after all is said and done, courts of limited jurisdiction. Jones v. Giles, 741 F.2d 245, 248 (9th Cir.1984).

At the risk of belaboring the point, the rationale underlying Kittilson, supra, is worth quoting:

The coordination of the federal courts with federal regulations does not require imitation by this court in construing our act, only that our construction not interfere with the federal scheme____ No contention is made ... by defendant that not requiring scienter would interfere with the federal scheme.

93 Wash.2d at 227, 608 P.2d at 268.

This Court would fully concur that the result reached in Kittilson does not interfere with federal objectives — provided that claims brought under the state securities act remain in the state system. When they find their way into the federal system, the interference becomes both real and substantial. Cf., Burgess v. Premier, 727 F.2d 826, 836-37 (9th Cir.1984).

Countervailing the above considerations is the virtue of economy which flows from accepting pendent jurisdiction. See, e.g., Albers v. Whitley, 546 F.Supp. 726, 737 (D.Ore.1982), modified on other grounds, 743 F.2d 1372 (9th Cir.1984). This is most certainly a prime factor in exercising the discretionary function of accepting or rejecting pendent claims. However, since what remains of plaintiffs action in C-84-382 is being remanded to whence it came, the Court can see no loss of either substantive worth or economy in refusing to continue to exercise jurisdiction over pendent claims in the instant case. See Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir.1981). Accordingly, Counts IX, X, XI, XIII and XIV will be dismissed.

With regard to those counts based on the 1933 Act, 15 U.S.C. § 77v provides that an action may be “brought in the district wherein the defendant is found or is an inhabitant or transacts business, or in the district where the offer or sale took place, if the defendant participated therein.” The Court’s view of the totality of the present record is that the Texas defendants’ “transaction of business” and “participation” was so marginal, minimal, attenuated and collateral that it would offend due process to keep these defendants in the case. Accordingly, Counts III, IV, V, and VI will be dismissed as to the Texas defendants.

In so concluding, the Court is well aware of the difference between the International Shoe analysis applicable to extraterritorial assertions of jurisdiction by the states, and the distinct, if unsettled, due process analysis required when federal jurisdiction, venue, and process statutes are involved. Perhaps the most enlightening decision yet published in terms of framing the issues is to be found in a comparison of the majority and dissenting opinions of Haile v. Henderson Nat. Bank, 657 F.2d 816 (6th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1450, 71 L.Ed.2d 663 (1982) and authorities cited therein. Whatever may be the correct test out of the multiplicity of those posited by various courts over the years, this Court is convinced that statutes such as 15 U.S.C. §§ 77v and 78aa are to be limited and defined in terms of basic fairness as mandated by the Due Process Clause of the Fifth Amendment. See, e.g., Black v. Acme Markets, Inc., 564 F.2d 681, 686, 686 n. 8 (5th Cir.1977); Great Western United Corp. v. Kidwell, 439 F.Supp. 420, 432 (N.D.Tex.1977); Oxford First Corp. v. PNC Liquidating Co., 372 F.Supp. 191, 203 n. 24 and accompanying text (E.D.Penn.1974).

On the present state of the record, such fairness is lacking in view of the conclusory allegations which, taken as true, do not rise to the level of “participation” as that term is employed in § 77v. This determination notwithstanding, dismissal will be without prejudice and plaintiffs will be free to amend at a future point if discovery should reveal facts which satisfy the participation requirement.

With regard to those counts based on the 1934 Act, 15 U.S.C. § 78aa provides that an action may be brought “wherein the defendant is found or is an inhabitant or transacts business.” If the 1933 Act claims are deficient in this regard, then the more closely circumscribed 1934 Act claims must fall as well, and thus Counts I, II and VIII will be dismissed as to the Texas defendants.

With regard to Count XII, while the RICO claim is facially within the subject-matter jurisdiction of the Court, it cannot survive a motion to dismiss for failure to state a claim in its present form. The Court declines to follow authority cited by defendants from the Second Circuit, but even under controlling precedent it is clear that the present allegations are insufficient; and at a bare minimum, the claim must be restructured to satisfy the requisite elements set forth in Rae v. Union Bank, 725 F.2d 478 (9th Cir.1984); Lopez v. Dean Witter Reynolds, Inc., 591 F.Supp. 581 (N.D.Cal.1984); and Productions & Leasing v. Hotel Conquistador, 573 F.Supp. 717, 724 (D.Nev.1982), aff'd, 709 F.2d 21 (1983).

With regard to defendants’ motion for a more definite statement, this will be granted as provided below. With regard to all other motions now pending, these will be denied with leave to renote. The parties have some elections to make, and it would be premature at this time, and in light of the present state of the record, to consider these remaining contentions.

THEREFORE IT IS ORDERED that:

(1) Defendants’ Motion to Consolidate is DENIED as moot.

(2) With regard to Cause No. C-84-382:

(a) Counts I, II, VIII and XII are DISMISSED.

(b) Count VII is DISMISSED insofar as it is based on the 1934 Act and REMANDED insofar as it is based on the 1933 Act.

(c) The balance of the action is REMANDED to the Yakima County Superior Court and the Clerk shall take appropriate measures to accomplish such remand.

(3) With regard to Cause No. C-84-308:

(a) As to Counts I through VIII inclusive, those persons and entities denominated as the “Texas defendants” are DISMISSED without prejudice.

(b) Count XII is DISMISSED without prejudice.

(c) Counts IX, X, XI, XIII and XIV are DISMISSED with prejudice.

(4) At any time within the next thirty days, plaintiff may restructure the complaint so as to provide a comprehensive statement of allegations concerning those claims and parties remaining in the case, and with regard to those claims and parties which have been dismissed without prejudice.

(5) The scheduling order entered on August 30, 1984 is VACATED.

(6) The parties shall confer with one another as to all subjects referenced in Fed.R. Civ.P. 16 and attempt to agree where possible on appropriate dates for inclusion in a substitute pretrial scheduling order; and shall file written report(s) setting forth such proposed dates, either jointly or separately, within the next sixty days.

(7) The Clerk shall set this matter for a telephonic status conference approximately seventy days after entry of this Order.

(8) While the Court believes that this Order is in concert with applicable legal principles, at the same time, it must be recognized that there is room for honest disagreement. Accordingly, upon request from any party, an attempt will be made to structure this Order into an immediately appealable form, insofar as matters addressed herein are amendable to appeal. See 28 U.S.C. § 1447(d).

      . All references to the complaint are to the First Amended Complaint filed in each of these actions on June 22, 1984.

      . See Organized Crime Control Act of 1970, Statement of Findings and Purpose, P.L. 91-452; 84 Stat. 922, reprinted in 1970 U.S. Code Cong. & Ad.News 1073.

      . Burgess held that notwithstanding the difficulties visited upon the trial court in engineering instructions addressing both federal and Washington State claims, the latter did not present a federal question. Within the confines of Burgess, this is no doubt true. Here, however, the focus is on whether pendent jurisdiction should be accepted at all, and the federal policy implications of doing so are unmistakable.

      . International Shoe v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

      . In like manner, and for the same reasons, the Texas defendants will be dismissed as to Count VII, the "mixed bag" claim.

      . See Sedima, S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482 (2nd Cir.1984), appeal pending.