author: SPRIZZO, District Judge:

text:
    Joseph DUGAR, Plaintiff, v. Thomas COUGHLIN, Supt. Adirondack Correct. Facility, Supt. Auburn Correct. Facility, Supt. Ossining Correct. Facility, Carl Hunt, Steve Wiley, Defendants.
    83 Civ. 7471 (JES).
    United States District Court, S.D. New York.
    July 11, 1985.

      Joseph Dugar, pro se.
    Robert Abrams, Atty. Gen., State of N.Y., New York City, for defendants; Evelyn Tenenbaum, Asst. Atty. Gen., New York City, of counsel.
   OPINION & ORDER

SPRIZZO, District Judge:

Plaintiff pro se Joseph Dugar brought this action pursuant to 42 U.S.C. §§ 1983 & 1985 for injunctive relief and damages, alleging that various actions and practices of the defendants violated his civil rights and those of state prisoners. The complaint states two types of claims: the first relates to prisoners’ right of access to the courts, and the second regards prisoners’ participation in the New York Temporary Release Program (“TRP”).

Defendants have moved to dismiss the complaint pursuant to Ped.R.Civ.P. 12(b)(6) for failure to state a claim.

A. Access to the Courts

Plaintiff seeks an injunction (1) prohibiting defendants from charging prisoners for postage for legal mail; (2) prohibiting defendants from charging prisoners for all photocopying services in connection with legal work, except for copies made from books; (3) ordering that photocopying machines be placed in prison law libraries; and (4) requiring defendants to make available to prisoners the services of a notary five days a week. Plaintiff also seeks restitution of $200.00, apparently for prior charges for mail and copying services, and $15,000,000 in punitive damages. The basis for these claims is plaintiffs assertion that defendants’ present practices violate the due process and equal protection rights of prisoners.

Prisoners have a well established right of access to the courts, which prison regulation must not “unjustifiably obstruct.” See, e.g., Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974); Ex Parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 (1941). This principle, however, requires only that prisoners’ access to the courts be “adequate, effective, and meaningful,” see, e.g., Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977), and does not preclude the balancing of prisoners’ rights with the legitimate interests of the states, including economic concerns. See, e.g., id. at 825, 97 S.Ct. at 1496; Harrell v. Keohane, 621 F.2d 1059, 1061 (10th Cir.1980); cf. Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974). A state need not “provide the best manner of access, nor is it obligated to equalize the financial resources of each of its inmates____ So long as the State’s procedure’s [sic] meet constitutional minima, the courts should not second-guess them.” Pino v. Dalsheim, 558 F.Supp. 673, 675 (S.D.N.Y.1983) (emphasis in original).

1. Charges for Legal Mail

The New York Department of Correctional Services (“the Department”) has provided that prisoners may mail five one-ounce letters per week free of charge. Prisoners must pay for any mail weighing more than one ounce, or in excess of five one-ounce letters in any week. See Department of Correctional Services Directive No. 4422 at III(D)(1) & (3) (Dec. 7, 1981). Plaintiff claims that prisoners are constitutionally entitled to free postage for all legal mail, that Congress and the United States Postal Service have appropriated funds to allow prisoners to mail their legal materials for free, and therefore that the practice in New York, which may result in prisoners being charged for legal correspondence, is unlawful.

Plaintiff is incorrect in claiming that funds have been provided to fully subsidize prisoners’ legal mail. Furthermore, while a prisoner’s constitutional right of access to the courts includes a right to use the mails, this right is not absolute, see United States ex rel. Thompson v. Fay, 197 F.Supp. 855, 856 (S.D.N.Y.1961), and it does not require that prisoners be provided with unlimited free postage. See, e.g., Bach v. Coughlin, 508 F.2d 303, 307 (7th Cir.1974); Williams v. Ward, 404 F.Supp. 170, 171-72 (S.D.N.Y.1975). The practice in New York safeguards prisoners’ right of access while also protecting the State’s legitimate budgetary interests. See, e.g., Twyman v. Crisp, 584 F.2d 352, 359 (10th Cir.1978); Bach, supra, 508 F.2d at 307-08. It clearly does not suppress all court access, as plaintiff contends. Nor is there any basis to find that this policy deprives prisoners of money earned in prison without due process. Therefore, this aspect of plaintiff’s complaint must be dismissed for failure to state a claim.

2. Charging for Copy Machine Services

Plaintiff contends that, with the exception of charges for photocopying from books, it is unconstitutional to charge prisoners for photocopying services related to their legal work. He therefore challenges the practice at certain prisons whereby prisoners must pay $.10 per page for photocopies. He also notes in his complaint that prisoners have the option of using handwritten or typewritten copies as an alternative to photocopies, and that no charge is imposed for paper.

As with charges for postage, an inmate’s right of access to the courts is not unconstitutionally infringed by reasonable charges for copying services, particularly in light of the available alternatives. See, e.g., Johnson v. Parke, 642 F.2d 377, 380 (10th Cir.1981); Harrell, supra, 621 F.2d at 1061. These charges do not result in total or undue denial of access to the courts, but are a reasonable balance of the legitimate interests of both prisoners and the State. See Harrell, supra, 621 F.2d at 1061.

Plaintiff has cited no authority for his- claim that the Constitution requires that photocopying machines be placed in prison law libraries. It follows that this claim must also be dismissed.

3. Availability of Notary Services

Plaintiff contends that prisoners are constitutionally entitled to have available to them the services of a notary five days a week, and that the practice in New York violates this right. Once again, plaintiff has cited no authority for this claim. This court has squarely held that inmates do not have a constitutional right to notary services five days a week, see Washington v. Vincent, 361 F.Supp. 942, 943 (S.D.N.Y.1973), and can see no reason for departing from that ruling in this case. Therefore, these allegations must also be dismissed for failure to state a claim.

4. Equal Protection Claim

Plaintiff alleges in a conclusory fashion that the policies and practices with respect to postage, photocopying, and notary services discussed above deprive state prisoners of the equal protection of the laws, because of an “invidious class-based discriminatory animus” against them, and that without this hinderance plaintiff’s access to the courts would have been “more easily available.”

The Court can find no basis here for an equal protection violation. Plaintiff does not allege that either he or all prisoners in New York are discriminated against in comparison to some other group. Rather, plaintiff simply claims that all prisoners are entitled to free postage, photocopying, and daily notary services, and that the failure to provide these deprives prisoners of equal protection. The law is clear, however, that prisoners are not constitutionally entitled to any of these things. Moreover, the restrictions which are placed on prisoners’ access to the courts do not rise to the level of an equal protection violation as they do not deprive prisoners of “an adequate opportunity to present [their] claims fairly.” See Ross v. Moffitt, supra, 417 U.S. at 616, 94 S.Ct. at 2447.

Because the allegations regarding access to the courts fail to state a claim for the violation of any constitutional or federal right, they must be dismissed.

B. Temporary Release Program (“TRP")

Plaintiff alleges that he was denied due process and equal protection in connection with his rejection for participation in the TRP at Ossining Correctional Facility. He seeks damages and an injunction prohibiting the holding of “Temporary Release Evaluation Hearings” without a stenographer or recording device.

1. Due Process

In order to state a due process claim, plaintiff must have a constitutionally protected liberty interest with respect to participation in the TRP, see, e.g., Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Meachum v. Fano, 427 U.S. 215, 223-24, 96 S.Ct. 2532, 2537-38, 49 L.Ed.2d 451 (1976), which in turn depends upon the nature of the interest asserted. See, e.g., Greenholtz, supra, 442 U.S. at 7, 99 S.Ct. at 2103; Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

Plaintiffs claimed liberty interest is in conditional release from valid incarceration. However, prisoners have been legitimately deprived of all but the most basic liberty interests, see, e.g., Hewitt v. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983); Greenholtz, supra, 442 U.S. at 7, 99 S.Ct. at 2103; Meachum, supra, 427 U.S. at 224, 96 S.Ct. at 2538; Pugliese v. Nelson, 617 F.2d 916, 921 (2d Cir.1980), and as the Supreme Court noted in Greenholtz with respect to parole, “[tjhere is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” 442 U.S. at 7, 99 S.Ct. at 2104. It is also well-settled that the mere fact that a state has a conditional release program does not, in and of itself, create a protected liberty interest in the form of a legitimate expectation or entitlement of participation therein which implicates due process rights. See, e.g., Hewitt, supra, 459 U.S. at 471, 103 S.Ct. at 871; Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 467, 101 S.Ct. 2460, 2464, 2465, 69 L.Ed.2d 158 (1981); Greenholtz, supra, 442 U.S. at 9-11, 99 S.Ct. at 2104-05; Berard v. State of Vermont Parole Board, 730 F.2d 71, 73-74 (2d Cir.1984); Boothe v. Hammock, 605 F.2d 661, 663 (2d Cir.1979); cf. Pugliese, supra, 617 F.2d at 923.

The fact that the state “holds out the possibility of [conditional release] provides no more than a mere hope that the benefit will be obtained.” See Greenholtz, supra, 442 U.S. at 11, 99 S.Ct. at 2105 (emphasis in original); see also Dumschat, supra, 452 U.S. at 465, 101 S.Ct. at 2464; Pugliese, supra, 617 F.2d at 922; Kozlowski v. Coughlin, 539 F.Supp. 852, 855 (S.D. N.Y.1982); Russo v. New York State Board of Parole, 50 N.Y.2d 69, 74, 405 N.E.2d 225, 227, 427 N.Y.S.2d 982, 984 (1980). Therefore, any liberty interest giving rise to due process protections must arise from a “right explicitly conferred by the State,” see Dumschat, supra, 452 U.S. at 464, 101 S.Ct. at 2464; see also Meachum, supra, 427 U.S. at 226, 96 S.Ct. at 2539, by way of statute, judicial decree, or regulation. See, e.g., Hewitt, supra, 459 U.S. at 469, 103 S.Ct. at 870; Dumschat, supra, 452 U.S. at 464-65, 101 S.Ct. at 2464; Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); Pugliese, supra, 617 F.2d at 922; Kozlowski, supra, 539 F.Supp. at 855; Martino v. Gard, 526 F.Supp. 958, 960 (E.D.N.Y.1981).

Plaintiff acknowledges in his complaint and motion papers that no inmate has a constitutional right to participate in the TRP. He contends, rather, that the New York statute and regulations create a protected liberty interest in the TRP, and that having accumulated the necessary “points” on a scale used in TRP eligibility evaluation, and considering his other “qualifications”, he was entitled to participate in the program. The Court rejects this reading of both the statute and the regulations. Unlike the parole statute at issue in Greenholtz, supra, which had “unique structure and language” providing that parole “shall” be granted “unless” certain factors were present, see 442 U.S. at 11-21, 99 S.Ct. at 2105-2110, the New York statute specifically states that “[participation in a temporary release program shall be a privilege. Nothing contained in this article may be construed to confer upon any inmate the right to participate____” N.Y.Correct.Law § 855(9) (McKinney Supp.1984-85), see also People ex rel. Feliciano v. Waters, 99 A.D.2d 850, 850, 472 N.Y.S.2d 455, 456 (2d Dept.1984); Hoffman v. Wilson, 86 A.D.2d 735, 735, 446 N.Y.S.2d 609, 610-11 (3d Dept.1982); People v. Miller, 79 A.D.2d 687, 688, 434 N.Y.S.2d 36, 37 (2d Dept.1980); cf. Dumschat, supra, 452 U.S. at 465, 101 S.Ct. at 2464.

Inclusion in the program depends upon the Temporary Release Committee’s discretionary determination of whether participation “is consistent with the safety of the community and the welfare of the applicant, and is consistent with rules and regulations of the department, ...” N.Y.Correct.Law § 855(4). See also Martino, supra, 526 F.Supp. at 960. The statute does not mandate that certain prisoners “shall” participate “unless” specific disqualifications are present, but outlines a discretionary program. Therefore, the statute implicates no liberty interests. Cf. Greenholtz, supra, 442 U.S. at 10, 99 S.Ct. at 2105; Boothe, supra, 605 F.2d at 663-64; Russo, supra, 50 N.Y.2d at 74-76, 405 N.E.2d at 227-28, 427 N.Y.S.2d at 984-85.

The regulations promulgated under the New York TRP statute simply outline procedures and factors the Committee “should” consider in exercising its discretion; they do not list the exclusive factors to be considered nor do they mandate approval if certain factors are present. Therefore, while they may establish “guidelines ... used to structure the exercise of discretion,” they also fail to create any entitlement or legitimate expectation giving rise to a protected liberty interest. See Boothe, supra, 605 F.2d at 664; see also Martino, supra, 526 F.Supp. at 960; Marciano v. Coughlin, 510 F.Supp. 1034, 1037-38 (E.D.N.Y.1981); Schwimmer v. Dunham, 91 A.D.2d 100, 103, 457 N.Y.S.2d 838, 841 (2d Dept.1983); cf. Dumschat, supra, 452 U.S. at 466, 101 S.Ct. at 2465; Pugliese, supra, 617 F.2d at 923-25 & n. 6; Cofone v. Manson, 594 F.2d 934, 938-39 (2d Cir.1979); Russo, supra, 50 N.Y.2d at 75, 405 N.E.2d at 228, 427 N.Y.S.2d at 985. Compare Winsett v. McGinnes, 617 F.2d 996 (3d Cir.1980) (en banc), cert. denied sub nom. Anderson v. Winsett, 449 U.S. 1093, 101 S.Ct. 891, 66 L.Ed.2d 822 (1981).

Finally, plaintiff has not cited nor has the Court found any judicial decree which explicitly confers a right protected by due process. While a few courts have held that prisoners do have a constitutionally protected liberty interest with respect to removal from New York’s TRP, see Tracy v. Salamack, 572 F.2d 393, 395-96 (2d Cir.1978); Schumate v. New York, 373 F.Supp. 1166, 1169-70 (S.D.N.Y.1974); contra Feliciano, supra, 99 A.D.2d 850, 472 N.Y.S.2d 455, there is a well-settled difference in the interests involved in initial eligibility determinations with respect to discretionary conditional release programs, and those implicated by subsequent revocation of participation. See, e.g., Dumschat, supra, 452 U.S. at 464, 101 S.Ct. at 2464; Greenholtz, supra, 442 U.S. at 9-10, 99 S.Ct. at 2104-05; Pugliese, supra, 617 F.2d at 922; Boothe, supra, 605 F.2d at 663; United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079, 1086 (2d Cir.), vacated, 404 U.S. 879, 92 S.Ct. 196, 30 L.Ed.2d 159 (1971); Schumate, supra, 373 F.Supp. at 1169. As the Supreme Court noted in Greenholtz, a “crucial distinction” exists between “being deprived of a liberty one has, ... and being denied a conditional liberty that one desires.” 442 U.S. at 9, 99 S.Ct. at 2105. Therefore, those cases finding an interest protected by due process with respect to removal from a TRP do not require the recognition of a similar interest with respect to initial determinations regarding participation.

The arguments raised by plaintiff regarding his point score and other qualifications may demonstrate that he was eligible for consideration for TRP participation and had a right to apply for the program. See, e.g., Martino, supra, 526 F.Supp. at 960; Marciano, supra, 510 F.Supp. at 1037-38; cf. Dumschat, supra, 452 U.S. at 467, 101 S.Ct. at 2465; Hoffman, supra, 86 A.D.2d at 735, 446 N.Y.S.2d at 610. However, because there is no right explicitly conferred by any statute, regulation, or judicial decision which creates a liberty interest protected by due process with respect to initial determinations regarding actual participation in New York’s TRP, plaintiff’s due process claims must be dismissed.

2. Equal Protection

Plaintiff contends that his right to equal protection of the laws was violated by his rejection for TRP participation. Apparently in support of this claim, he states that he had been approved for TRP participation at other prisons, and was subsequently released on parole.

The Court can find no basis here for an equal protection claim. Plaintiff does not allege that he was treated differently than other similarly situated prisoners. Moreover, the Court has already held that plaintiff was not entitled to participate in the program, and approval of his application was within the discretion of the Committee. Therefore, to the extent he argues that another decisionmaker might have disagreed with the conclusion of the Committee denying plaintiff’s application, this claim has no constitutional implications. Plaintiff’s real complaint is that the Committee’s decision was erroneous, and this does not rise to the level of a constitutional violation. See, e.g., Martino, supra, 526 F.Supp. at 960-61; Marciano, supra, 510 F.Supp. at 1039; Sanno v. Preiser, 397 F.Supp. 560, 562 (S.D.N.Y.1975).

Plaintiff also alleges that the equal protection rights of all state prisoners are violated (1) by a requirement at Ossining that inmates participate in some other program before being considered qualified for the TRP; and (2) by the practice at Ossining of almost never approving prisoners with court actions pending against the State or the Department for TRP participation.

With respect to the first allegation, the Court fails to see any ground for an equal protection violation. Plaintiff identifies no specific rule demonstrating that Ossining requires prior program involvement before approving any inmate for TRP participation. Moreover, differing practices in administering this discretionary program which are rationally related to a legitimate purpose do not violate equal protection. See, e.g., Marciano, supra, 510 F.Supp. at 1039. Because the regulations provide that defendants have broad discretion to consider anything which they, in their best judgment, find significant, they were free to consider plaintiffs involvement or lack thereof in other prison programs. This is clearly rationally related to the purposes and goals of the TRP. Indeed, the regulations provide that the Committee may consider an applicant’s performance in programs.

The second claim that there is discrimination at Ossining against prisoners with actions pending is a wholly conclusory allegation and may therefore be dismissed. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). The Court is mindful of the general rule that a complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 180 (1957), and that a prisoner’s pro se complaint is held to a less stringent standard than formal pleadings drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 598, 30 L.Ed.2d 652 (1972); Marciano, supra, 510 F.Supp. at 1039. However, in Flaherty, also a section 1983 action claiming denial of temporary release based on a prisoner’s involvement in litigation, the Second Circuit stated that prisoners’ retaliation claims are “prone to abuse,” and that when such claims are alleged “in wholly conclusory terms, [they] may safely be dismissed on the pleadings.” Id.; cf. Marciano, supra, 510 F.Supp. at 1039; Hoffman, supra, 86 A.D.2d at 735, 446 N.Y.S.2d at 611. Therefore, plaintiff’s equal protection claims are dismissed.

CONCLUSION

For the reasons stated herein, plaintiff’s complaint is dismissed for failure to state a claim.

It is SO ORDERED.

      . Plaintiff's complaint states that his action also “arises under" sections 4, 241, 242, 245, 246, 286, 371, 1711, 1726, 1901, and 2071(b) of Title 18. Sections 241, 242, and 245 relate to deprivation of civil rights, however there is no private right of action under any of these statutes. See, e.g., Powell v. Kopman, 511 F.Supp. 700, 704 (S.D.N.Y.1981); Sauls v. Bristol-Meyers Co., 462 F.Supp. 887, 889 (S.D.N.Y.1978). The other provisions of Title 18 do not secure rights to plaintiff. He can neither sue directly under them, nor can he use them as a predicate for a section 1983 action. See, e.g., Dopico v. Goldschmidt, 518 F.Supp. 1161, 1176 (S.D.N.Y.1981), aff'd in part, rev’d in part on other grounds, 687 F.2d 644 (2d Cir.1982).

      . Defendants are Thomas Coughlin, Commissioner of the New York State Department of Correctional Services; the superintendents of Adirondack, Auburn and Ossining Correctional Facilities; unnamed "administrative personnel;" and Carl B. Hunt and Steve Wiley, members of the Ossining Temporary Release Committee.

      . Plaintiff has also stated in affidavits filed with respect to this motion that he believes the rules and regulations of the Department violate the Constitutions and laws of the United States and of New York State. This claim does not appear in plaintiff's complaint, and is therefore not properly before the Court, however the Court notes that these regulations have been challenged and upheld under the Due Process clause. See Marciano v. Coughlin, 510 F.Supp. 1034, 1038 (E.D.N.Y.1981).

      . The Appellate Division, Second Department has held that revocation of a prisoner’s participation in the TRP due to a change in his possible parole date is "not a violation of any cognizable legal right.” See Feliciano, supra, 99 A.D.2d at 850, 472 N.Y.S.2d at 456. The court specifically noted its disapproval of an earlier state Supreme Court decision which had found a due process interest with respect to revocation of TRP participation, and which had cited as authority, inter alia, the district court decision in Tracy v. Salamack. See id.

        Tracy v. Salamack was decided before the Supreme Court's decisions in Greenholtz and Dumschat. In light of those cases, this Court disagrees with the statement of the district court in Tracy, see 440 F.Supp. 930, 934 (S.D.N.Y.1977), that due process rights attach to the initial determination regarding participation in a TRP. Cf. Boothe v. Hammock, 605 F.2d 661 (2d Cir.1979) (rejecting, based on Greenholtz, prior Second Circuit law that prisoners have due process interest in initial parole determinations). To the extent that the district court in Tracy depended on Cardaropoli v. Norton, 523 F.2d 990 (2d Cir.1975), as authority for the statement that due process rights are implicated in all initial TRP determinations, see 440 F.Supp. at 934, this Court also disagrees. Cardaropoli, also decided before Greenholtz and Dumschat, as well as before Meachum, dealt with the issue of classification of prisoners as "special offenders,” which had the collateral effect, inter alia, of "hindering or precluding” eligibility for a TRP-type program. See Cardaropoli, supra, 523 F.2d at 995. The Court held that these collateral effects required that prisoners be protected by due process in the classification procedure. In Pugliese, supra, the Second Circuit noted that Cardaropoli was no longer governing in light of the above-mentioned Supreme Court rulings. See 617 F.2d at 923.

      . It is therefore unnecessary to decide whether the procedures plaintiff complains of herein satisfied due process. See, e.g., Dumschat, supra, 452 U.S. at 463, 101 S.Ct. at 2463; Leis v. Flynt, 439 U.S. 438, 443-44, 99 S.Ct. 698, 701, 58 L.Ed.2d 717 (1979) (per curiam). The Court notes, however, that in his post-argument affidavit plaintiff stated that the defendants were permitted, consistent with due process, to hold temporary release hearings without the aid of any recording device.

      . The only apparent basis for this allegation is the fact that in denying plaintiffs TRP application the Committee stated, inter alia, that it felt plaintiff had not availed himself of any meaningful program opportunities at Ossining, and suggested that he do so, see Complaint, Exhibit 2, and the “Notice of Results of Appeal” provided that plaintiff "must enroll in/continue participation in” a “Group Therapy” and a “Vocational/Academic" program. See Affidavit of Evelyn Tenenbaum, Exhibit A (June 1, 1984).


source: Caselaw Access Project

author: LORD, Senior District Judge.

license: Public Domain

text:
    INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL UNION NO. 34, AFL-CIO, Plaintiff, v. GENERAL PIPE COVERING, INC., Western Insulation Services, Inc., Thermal Insulation Supply Corp., Donna M. Dingley, and Sheldon L. Dingley, Defendants.
    Civ. No. 4-85-565.
    United States District Court, D. Minnesota, Fourth Division.
    July 11, 1985.

      Stephen D. Gordon, Robins, Zelle, Larson & Kaplan, St. Paul, Minn., for plaintiff.
    J. Dennis O’Brien, LaFevere, Lefler, Kennedy, O’Brien & Drawz, P.A., Minneapolis, Minn., for defendant.
   ORDER

LORD, Senior District Judge.

On April 11, 1985, plaintiff filed suit under the Labor Management Relations Act against General Pipe Covering, Inc., and others seeking enforcement of an arbitration award. See 29 U.S.C. § 185. Plaintiff is the International Association of Heat and Frost Insulators and Asbestos Workers, Local Union No. 34 (Asbestos Workers Union), and is a labor organization representing employees in an industry affecting commerce. 29 U.S.C. § 141 et seq. (LMRA). Defendants General Pipe Covering, Inc. (General Pipe), Western Insulation Services, Inc., and Thermal Insulation Supply Corporation are companies employing people in an industry affecting commerce. The Union and General Pipe Covering, Inc. are parties to a collective bargaining agreement, the 1981-1984 Trade Agreement between the Asbestos Workers and the Thermal Insülation Contractors Association. The Agreement, among other things, forbids employers to contract out specified work. It also provides a dispute resolution process for “differences in interpretation” of the Agreement. See Trade Agreement Article IV, § 1; Article VI, § 1; Article XI. The agreement creates a six-person “Trade Board” consisting of three union and three employer members. Id., Article IV. The Board is given the power to investigate “all labor operations” of the parties, and all “[tjrade disputes or grievances” are submitted to the Board when the parties fail to agree. The Trade Board also has power to impose “fines or othe[r] penalties” on either party, and is charged with the duty to “see that any fines or penalties ... are satisfied.” Id.

The union’s business agent filed a grievance against General Pipe Covering on February 12, 1985. He alleged that the company had violated the agreement by performing union work in the guise of “Western Insulation Services, Inc.,” or by subcontracting work to that firm. By letter of March 5, the business agent notified Donna and Sheldon Dingley, the principals of General Pipe, that the union intended to pursue this grievance before the Trade Board. The Contractors Association notified General Pipe in a letter dated March 11, 1985, that the Trade Board would meet to hear the case on March 15, 1985. Defendants admit that Donna Dingley received this letter “on or after” the following day, March 12. Defendants' Memorandum in Support of Motion to Vacate Trade Board Award at 4. One of the employers’ representatives on the Board called Donna Dingley the morning of the meeting, but she stated she would not attend. See Plaintiff’s Exhibit P. The Trade Board therefore proceeded in the Dingleys’ absence, and voted unanimously that General Pipe had violated the labor agreement. The Board then voted 5-1 to fine General Pipe $75,000.

The federal courts are not appellate tribunals for the review of such arbitration awards. Courts may not reexamine the merits of the award so long as it “draws its essence” from the collective bargaining agreement. W.R. Grace and Co. v. Local Union 759, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960).

Defendant General Pipe raises basically three arguments in opposing plaintiff’s motion to enforce this award. The first is procedural. Defendant argues that the Trade Board’s ex parte hearing deprived it of due process of law. Due process, however, only requires the arbitrator to give a party notice of the hearing and an opportunity to be heard. E.g., Totem Marine Tug & Barge, Inc. v. North American Towing, 607 F.2d 649, 651 (5th Cir.1979); Ryan-Walsh Stevedoring Co., Inc. v. General Longshore Workers Union, Local 3000 of Intern. Longshoremen’s Ass’n., 509 F.Supp. 463, 467 (E.D.La.1981). The union’s business agent here notified defendants some ten days before the hearing that the union had decided to press its claims before the Trade Board. By their own admission, defendants received notice of the time and place of the meeting at least “one to three days” beforehand. Defendant’s Memorandum in Support of Motion to Vacate Trade Board Award at 4. The head of the Contractors Association, who was also a Trade Board member, went so far as to call Donna Dingley the morning of the hearing to remind her of it. She simply declined to attend. Clearly a party may not vitiate its agreement to arbitrate by simply refusing to participate in the proceedings. And as another judge of this court has noted, “[i]t is well settled that an arbitrator may determine a grievance in the absence of a party who has failed to attend a hearing after being duly notified of it.” I.B.E.W. Local No. 292 v. Hedstrom Electric, Inc., Civ. No. 4-82-39, slip op. at 6 (D.Minn., Oct. 5, 1982) (Murphy, J.), and see cases cited therein. See also Retail Store Employees Local 954 v. Lion Dry Goods, 67 L.R.R.M. 2871 (N.D.Ohio 1966), aff'd 67 L.R.R.M. 2873 (6th Cir.1967), cert. den. 390 U.S. 1013, 88 S.Ct. 1264, 20 L.Ed.2d 163 (1968) (“[w]e would be in a state of anarchy if the parties ... could avoid decisions by the simple process of taking their dolls and going home”). When defendants chose to ignore the Trade Board meeting, they did so at their peril.

Defendant next argues that this award is “punitive” rather than compensatory, and should be vacated for that reason. Plaintiff responds that the award is in fact compensatory, and is based on the Trade Board’s estimate of the damages union members suffered as a result of the employer’s conduct. Plaintiff’s argument that this award is designed to compensate the union for its members’ losses seems disingenuous at best. The trade agreement between the parties expressly gives the Trade Board the authority to levy “fines or penalties.” See Trade Agreement, Art. IV, § 1 F. According to the minutes of the meeting, the Board itself labelled this award a “fine.” See Plaintiff’s Exhibit P at 4. Moreover, the fines the Board collects are to be turned over to charity, not to the union. See Trade Agreement, Art. Art. IV, § IF; and Plaintiff’s Exhibit P at 4. Even if the fine in fact reflected the Board’s estimate of the union’s damages, this award was not “compensation” to the union in either intent or effect. The Trade Board clearly wished to punish General Pipe for its breach of the labor agreement, and did so.

It nevertheless does not follow that defendant is now entitled to a judicial pardon. Punitive arbitration awards are, of course, generally disfavored in labor law. See Westinghouse Electric Corp. v. I.B.E.W. Local 1805, 561 F.2d 521, 523 (4th Cir.1977); Local 127, United Shoe Workers v. Brooks Shoe Mfg. Co., 298 F.2d 277, 282 (3d Cir.1962) (opinion of Staley, J.). This policy has led courts to refuse to enforce them “[i]n the absence of any provision [in the agreement] for punitive awards.” United Electrical, Radio and Machine Workers of America, Local 11390 v. Litton, 704 F.2d 393, 398 (8th Cir.1983) (emphasis added) (refusing to enforce “punitive” portion of award), rev’d en banc 728 F.2d 970, 972 (8th Cir.1984) (finding award arguably compensatory). These holdings place a limit on the broad discretion arbitrators enjoy in fashioning remedies. See United Steelworkers v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 597, 80 S.Ct. at 1361; see also Litton, supra, 704 F.2d at 401 (Arnold, J., dissenting). Where an arbitrator has entered a punitive award without contractual authority, courts often refuse enforcement on the ground that the award does not “draw its essence” from the parties’ agreement. E.g., Baltimore v. Regional Joint Board v. Webster Clothes, 596 F.2d 95, 98 (4th Cir.1979).

That is hardly the case here. The trade agreement clearly gives the Board the power to impose punitive awards. Indeed, the contract does not expressly authorize the Board to make any other kind of award. Where the parties have called forth such a creature by their contract, they must live with its edicts. See Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 679 (7th Cir.1983), cert. den., — U.S. ---, 104 S.Ct. 529, 78 L.Ed.2d 711 (1983).

Finally, the defendants have moved this court to stay its proceedings and order the parties to further arbitration. This motion is based on the two-step arbitration clause contained in the Trade Agreement. After enumerating the powers of the Trade Board, the Agreement provides that “[a]ny controversy which cannot be settled informally by the Trade Board parties shall be referred to a neutral arbitrator chosen by mutual agreement of the parties____” Trade Agreement, Art. IV, § 2. In defendant’s view this provision makes the Trade Board a rather toothless organism, one that either party may ignore if it wishes. Defendant believes this court must order the parties to arbitration now that defendant has exercised that option. Plaintiff contends, on the other hand, that this language requires third party arbitration only when the vote of the six-member Trade Board is evenly split.

Plainly the relative merits of these competing interpretations are not before this court. The question of an arbitrator’s authority is itself a question of contract interpretation that the parties have delegated to the arbitrator. W.R. Grace v. Local Union 759, supra, 461 U.S. at 765, 103 S.Ct. at 2183. Here, the Trade Board was the arbitrator chosen by the parties. The Board clearly decided it had the power to fine General Pipe, even though it did not explain this finding in the record. Arbitrators are not required to supply courts with reasons for all the conclusions embodied in their awards. United Steelworkers v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 593, 80 S.Ct. at 1358. If the award in fact decides the disputed issue, a court may not overturn it simply the accompanying opinion is incomplete. Air Line Pilots Ass’n v. Northwest Airlines, 498 F.Supp. 613, 620-621 (D.Minn.1980). See also W.R. Grace and Co. v. Local Union 759, supra, 461 U.S. at 767 n. 10, 103 S.Ct. at 2184 n. 10. The award, rather than the explanation of it, controls. Air Line Pilots Ass’n, supra. Here, the Trade Board decided it had the power to penalize General Pipe, and proceeded to do so. This decision plainly drew its “essence” from the parties’ agreement. There it ends. United Steelworkers v. Enterprise Wheel & Car Corp., supra; Safeway Stores v. Bakery Workers, Local 111, 390 F.2d 79, 84 (5th Cir.1968).

In addition, plaintiff has moved the court for a prejudgment writ of attachment, a temporary restraining order, and a temporary injunction in aid of arbitration under Boys Markets to preserve the status quo. See generally Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). The issuance of a writ of attachment is controlled by state law, and Minnesota has always committed the matter to the “sound discretion” of the court. Pierse v. Smith, 1 Minn. 82 (Gil. 60, 63) (1851). This court does not feel that plaintiff has introduced sufficient facts demonstrating the need for this “extraordinary remedy,” id., and that the matter is now moot. See Beigler v. Chamberlin, 145 Minn. 104, 106, 176 N.W. 49, 50 (1920). This court did not grant plaintiff’s motion for a temporary restraining order following the initial hearing on this matter for much the same reasons. The two brief affidavits outlining the plaintiff’s fears have not convinced the court of the pressing necessity for extraordinary relief. See Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 114 (8th Cir.1981). Nor is the court prepared to grant plaintiff an injunction. No evidentiary hearing, as required by the Norris-La Guardia Act, has been requested or held. See 29 U.S.C. § 107; U.A.W. Local 1051 v. Lester Eng. Co., 718 F.2d 818, 823-24 (6th Cir.1983). The court at this point does not feel sufficiently conversant with the facts surrounding the demise of General Pipe to enable it to confidently issue an injunction in this labor dispute. Detroit Newspaper Publishers Ass’n v. Detroit Typographical Union, 471 F.2d 872, 876-877 (6th Cir.1972).

It is nevertheless clear that defendant’s decision to ignore the Trade Board proceedings and its refusal to comply with the resulting award were without justification. Therefore, an award of attorney’s fees to the union is proper. General Drivers and Helpers Union Local 554 v. Young and Hay Transportation Co., 522 F.2d 562, 568 (8th Cir.1975).

Therefore, based on all the files, records, affidavits, and memoranda herein, and on the arguments of counsel, IT IS HEREBY ORDERED:

1) That plaintiff’s motion to confirm the arbitration award issued by the Trade Board in this matter on March 15, 1985, be and is granted;

2) That plaintiff’s motions for a writ of attachment, and for injunctive relief be and are denied;

3) That defendant’s motions to vacate the arbitration award and to stay these proceedings pending resort to further arbitration be and are denied;

4) That plaintiff be awarded all reasonable attorney’s fees incurred in bringing its motion to confirm the arbitration award.

IT IS SO ORDERED.


author: BARRINGTON D. PARKER, District Judge:

text:
    PRACTICAL CONCEPTS, INC., Plaintiff, v. The REPUBLIC OF BOLIVIA, Defendant.
    Civ. A. No. 82-3706.
    United States District Court, District of Columbia.
    July 11, 1985.

      Neil I. Levy, Melrod, Redman & Gartlan, Washington, D.C., for plaintiff.
    William R. Joyce, Jr., Thomas T.F. Huang, Vance, Joyce, Carbaugh & Huang, Washington, D.C., for defendant.
    L. Marc Zell, Topf, Zell, Kolodny & Gold-stein, Bethesda, Md., for garnishee.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

On July 28, 1983, this Court entered a default judgment in favor of the plaintiff, Practical Concepts, Inc. (“PCI”), against the Republic of Bolivia (“Bolivia”) in the amount of $1,695,601.00. After a statutorily prescribed waiting period, PCI began proceedings to execute the judgment and obtained attachments directed to two local banks against accounts titled in the name of the Bolivian Embassy. Shortly thereafter, Bolivia made its first appearance and filed a motion to vacate the default judgment, arguing it is void because the Court lacked jurisdiction to render it. In addition to Bolivia’s motion, there are presently before the Court PCI’s motions for judgment of condemnation against the garnishee National Bank of Washington, and for discovery sanctions against Corporación Min-era de Bolivia, an intervenor claiming ownership of one of the garnished accounts.

For the reasons set forth below, the Court vacates the default judgment and dismisses the suit for lack of personal and subject matter jurisdiction. Consequently, the writs of attachment are quashed, and the motion for discovery sanctions denied.

FACTUAL BACKGROUND

This litigation arises from Bolivia’s alleged breach of a contract for the provision of consulting services by PCI. The contract was executed in August 1979 by the Bolivian Ministry of Planning and Coordination (“MPC”), but was mainly funded by a $2.5 million grant from the United States Agency for International Development (“AID”). The purpose of both the AID grant and the PCI contract was to develop a comprehensive plan for Bolivian rural development.

PCI’s services under the contract were to be rendered by two. distinct teams of advisors. PCI’s U.S.-based staff retained overall control and were responsible for broadscale research, planning and supervision of the project. Other aspects of the project, such as direct technical assistance and data gathering, were to be performed by personnel on location in Bolivia for periods of assignment ranging from one to three years (referred to in the contract and hereinafter as the “field team” or “expatriate staff”).

In addition to their consulting fee and fixed costs, the contract entitled PCI to reimbursement of costs directly incurred in the course of performance. Reimbursement was to be made through the submission of monthly vouchers to MPC. Once verified and approved, the vouchers were transmitted to AID, which authorized payment from the U.S. Treasury directly to PCI in Washington, D.C. The contract provided that “[f]inancing of these services and other costs will be subject to the availability of funds to USAID for this purpose” and “that USAID may, from time to time, exercise [certain] approval rights” including “the right to approve the terms of this Contract, the Contractor, and any or all ... specifications ... related to this Contract and the Project of which it is part.” Articles III, IV C., Exhibit B to Bolivia’s Memorandum in Support of Motion for Relief From Judgment by Default and for Dismissal.

Performance of the contract proceeded smoothly until May 1981, when AID informed MPC that it would discontinue funding of the contract, apparently because PCI had come under investigation by AID’s Inspector General and by the Justice Department. On May 21, 1981, MPC advised PCI of the termination of the contract.

PCI’s complaint, filed December 30,1982, alleged that Bolivia had breached the contract by failing to comply with its termination provisions. Specifically, PCI claimed that Bolivia gave inadequate notice of termination, failed to honor a properly submitted “termination claim” voucher, and wrongfully revoked its earlier approval of two PCI vouchers which had not yet been paid by the U.S. Treasury.

Although Bolivia acknowledged service of the complaint, it took no action in defense of the suit. On July 28, 1983, in strict compliance with the provisions of the Foreign Sovereign Immunities Act (“FSIA” or “the Act”) governing the award of default judgments against foreign states, 28 U.S.C. § 1608(c) (1982), the Court entered its judgment. Bolivia did not appeal. On October 12, 1984, after determining that a reasonable period of time had elapsed following the entry of judgment, 28 U.S.C. § 1610(c) (1982), the Court issued attachments to the National Bank of Washington and Riggs National Bank against Bolivian embassy accounts. The embassy filed letters of protest four days later, and finally, on November 14,1984, counsel appeared on behalf of Bolivia.

ANALYSIS

The Court turns its attention to Bolivia’s motion under Federal Rule of Civil Procedure 60(b) to vacate the default judgment. As grounds for that relief, Bolivia asserts that the judgment is void because, by virtue of Bolivia’s sovereign immunity, the Court lacked both subject matter and in personam jurisdiction. PCI makes three colorable arguments in response. First, it maintains that the motion is untimely. Second, PCI argues that lack of jurisdiction is not sufficient grounds to set aside the judgment under Rule 60. Finally, PCI argues that the Court did in fact have jurisdiction to render the judgment. The Court proceeds with an analysis of these three arguments.

A.

Rule 60(b) provides in relevant part:

On motion and upon such terms as are just, the court may relieve a party of his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

A threshold issue raised by the briefs is whether Bolivia’s motion is time-barred by the last quoted sentence of the rule. The motion was filed on December 4, 1984, more than one year after entry of the default judgment, and so any reliance on clauses (1), (2), and (3) of the rule would plainly be foreclosed. Bolivia’s jurisdictional attack, however, falls within clause (4) of the rule. The issue is thus reduced to whether the “reasonable time” limitation in the first clause of the sentence operates to bar the motion.

PCI urges the Court to view the issue in light of the special requirements of the FSIA which assure that a foreign government is apprised of a default against it and given a reasonable opportunity to seek relief prior to any attachment being issued. Bolivia’s lengthy delay in making any sort of post-judgment submission to the Court, says PCI, cannot, especially in light of the failure to take advantage of these protections, be regarded as reasonable.

It is well established, however, that, despite what a literal reading of the rule would suggest, the “reasonable time” limitation does not apply to a motion under clause (4) attacking a judgment as void. Pacurar v. Hernly, 611 F.2d 179, 181 (7th Cir.1979); C. Wright & A. Miller, Federal Practice and Procedure § 2862 (1973) (hereinafter “Wright & Miller”). Our Circuit Court of Appeals has held that “a void judgment, ... [cannot] acquire validity because of laches on the part of him who applies for relief from it,” Austin v. Smith, 312 F.2d 337, 343 (D.C.Cir.1962). It would be anomolous if the FSIA, with its special solicitude for foreign states, were cited as justification for applying a more stringent rule here.

Parenthetically, the Court notes that it finds nothing at all unreasonable in Bolivia’s strategy of waiting until after execution of the judgment was under way to raise its jurisdictional point. As explained in the next section, a defendant who questions a court’s jurisdiction over him is free to ignore the suit and attack the default judgment in a subsequent proceeding, provided, of course, that he is willing to undertake the risks associated with that tactic. Bolivia made such a choice here, and even were it not for the rule just cited, the Court would be unable to find that choice unreasonable.

B.

A judgment is not void merely because it is erroneous. Wright & Miller, § 2862. PCI devotes a considerable portion of its brief to arguing that, even assuming the Court lacked jurisdiction to enter judgment against Bolivia, that does not amount to the sort of defect that would render the judgment void. Rather, the judgment is, at most, merely erroneous.

The traditional rule is that a judgment rendered in excess of the court’s jurisdiction is void and a legal nullity. Restatement of Judgments §§ 5-7 (1942). PCI cites younger authorities that seem to question that rule. One of their cases holds that

In the interest of finality, the concept of void judgments is narrowly construed. While absence of subject matter jurisdiction may make a judgment void, such total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction. A court has the power to determine its own jurisdiction, and an error in that determination will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void.

Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 649 (1st Cir.1972) (footnote omitted). PCI relies on these authorities to argue that, if the Court erred in accepting the complaint’s allegation that it had jurisdiction, Bolivia’s only remedy was by timely appeal.

All of PCI’s authorities, however, address situations where the defendant raised (or should have raised) the jurisdictional issue prior to the attack in question. They seem to offer an escape from the general rule because they do not distinguish voidness and issue preclusion.

Where a defendant appears in the original suit and raises the jurisdictional issue but has it determined against him, he is barred from relitigating the issue in a subsequent voidness attack. Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). Similarly, if the party charged with the judgment appeared in the action but did not actually assert lack of jurisdiction, he is foreclosed from raising it for the first time in a Rule 60(b)(4) motion or collateral attack. Honneus v. Donovan, 93 F.R.D. 433, 437-38 (D.Mass.), affirmed, 691 F.2d 1 (1st Cir.1982). “By hypothesis the party had opportunity to raise the jurisdictional defense. There is little reason for saying it should survive the judgment when defenses on the merits would not.” F. James & G. Hazard, Civil Procedure, § 13.16 at 696 (2nd ed. 1977).

On the other hand, where, as here, the defendant never appeared in the original suit and thus has not yet litigated the point, he is not excepted from the rule that a jurisdictional defect renders a judgment void. “A defendant is always free to ignore the judicial proceedings, risk a default judgment and then challenge that judgment on jurisdictional grounds in a collateral proceeding.” Insurance Corporation of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706, 102 S.Ct. 2099, 2106, 72 L.Ed.2d 492 (1982). See also Baldwin v. Traveling Men’s Association, 283 U.S. 522, 525, 51 S.Ct. 517, 518, 75 L.Ed. 1244 (1931); Maritime International Nominees Establishment v. Republic of Guinea, 693 F.2d 1094, 1099 n. 9 (D.C.Cir.1982), cert. denied, — U.S. ---, 104 S.Ct. 71, 78 L.Ed.2d 84 (1983) (hereinafter "MINE"); James & Hazard, § 13.16 at 697; 59 A.L.R.Fed. 831 (1982).

Accordingly, if this judgment suffers from a jurisdictional defect, it is void. In an action against a foreign state, the existence of both subject matter and personal jurisdiction turns on whether the defendant state is entitled to sovereign immunity under the FSIA. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 485 n. 5, 103 S.Ct. 1962, n. 5, 76 L.Ed.2d 81 (1982); MINE, 693 F.2d at 1099; 28 U.S.C. §§ 1330(a), (b) (1982). The next section of this opinion discusses that issue.

C.

The provisions of the Act relevant to sovereign immunity are set forth below.

§ 1604. IMMUNITY OF A FOREIGN STATE FROM JURISDICTION. Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.
§ 1605. GENERAL EXCEPTIONS TO THE JURISDICTIONAL IMMUNITY OF A FOREIGN STATE, (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—
(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver;
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States[.]
§ 1606. EXTENT OF LIABILITY.... § 1607. COUNTERCLAIMS....

Since neither party has directed the Court’s attention to any international agreements affecting Bolivia’s sovereign immunity in this case, the issue depends upon the application of section 1605 of the Act. PCI argues for exceptions to immunity under both subsections (a)(1) and (a)(2). The Court will address the “commercial activity” exception first.

1.

The FSIA codified the “restrictive” common law theory of sovereign immunity. Under this theory, immunity is limited to cases arising from “public” or “governmental” acts. If the activity sued upon is not governmental but “commercial,” then the foreign state is not entitled to immunity. See Hearings on HR. 3493 Before Subcommittee on Claims and Governmental Relations of the House Committee on the Judiciary, 93d Cong., 1st Sess. 15 (1973) (testimony of Charles N. Brower, Legal Advisor, Department of State).

Not surprisingly, then [t]he determination of whether particular behavior is “commercial” is perhaps the most important decision a court faces in an FSIA suit____ Unfortunately, the definition of “commercial” is the one issue on which the Act provides almost no guidance at all. Subsection 1603(d) advances the inquiry somewhat, for it provides: “The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” No provision of the Act, however, defines “commercial.” Congress deliberately left the meaning open and, as noted above, “put [its] faith in the U.S. courts to work out progressively, on a case-by-case basis ... the distinction between commercial and governmental.”

Texas Trading v. Federal Republic of Nigeria, 647 F.2d 300, 308-09 (2nd Cir.1981) (Kaufman, J.) (citations omitted), cert. denied, 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 (1982) (hereinafter “Texas Trading ”).

The Court has no quarrel with PCI’s proposition that an otherwise commercial activity does not lose its commercial character because it was entered into in connection with an AID program. H.Rep. No. 94-1487, 94th Cong., 2d Sess. 16 (1976), U.S.Code Cong. & Admin.News 1976, pp. 6604, 6614 (hereinafter “House Report”). But this does not assist the Court in determining whether, apart from AID funding, the activity involved in this contract dispute is commercial or governmental.

PCI argues that a contract between a foreign state and a private party for the purchase of goods or services is per se a commercial activity. Texas Trading, 647 F.2d at 309, is cited for this proposition. But that opinion merely observes that “[t]he House Report seems to conclude that a contract or series of contracts for the purchase of goods would be per se a ‘commercial activity,’ ” id. (emphasis added). The House Report in fact goes on to state that “[t]he courts would have a great deal of latitude in determining what is a ‘commercial activity’ for purposes of this bill. It has seemed unwise to attempt an excessively precise definition of this term, even if that were practicable.” House Report at 16, U.S.Code Cong. & Admin.News 1976, at 6615. And in practice courts have not automatically treated every contract for goods or services as commercial activity. E.g., Tuck v. Pan American Health Organization, 668 F.2d 547, 550 (D.C.Cir.1981) (employment contract held not commercial activity); Broadbent v. Organization of American States, 628 F.2d 27, 33-36 (D.C.Cir.1980) (same); International Association of Machinists v. Organization of Petroleum Exporting Countries, 477 F.Supp. 553, 567 (C.D.Cal.1979), aff'd on other grounds, 649 F.2d 1354 (9th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1036, 71 L.Ed.2d 319 (1982) (contracts for sale of petroleum not “commercial activity” since that term should be narrowly construed); Carey v. National Oil Corp., 453 F.Supp. 1097, 1102 (S.D.N.Y.1978), aff'd, 592 F.2d 673 (2nd Cir.1979) (same).

A more useful approach is to consider the rationale for the distinction between commercial and governmental activity. In his thorough analysis in the leading Texas Trading case, Judge Kaufman quoted two expressions of the reasoning behind the rule:

If a government enters into a contract to purchase goods and services, that is considered commercial activity. It avails itself of the ordinary contract machinery. It bargains and negotiates. It accepts an offer. It enters into a written contract and the contract is to be performed.

Hearings on H.R. 11315 Before the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary, 94th Cong., 2d Sess. 51 (1976) (testimony of Bruno Ristau, Chief of Foreign Litigation Section of Civil Division, U.S. Department of Justice), quoted in Texas Trading, 647 F.2d at 309.

If a government department goes into the market places of the world and buys boots or cement — as a commercial transaction — that government department should be subject to all the rules of the marketplace.

Trendtex Trading Corp. v. Central Bank of Nigeria, 2 W.L.R. 356, 369, 1 All E.R. 881 (1977) (Lord Denning), quoted in Texas Trading, 647 F.2d at 310. Judge Kaufman crystallized his analysis down to the following rule of thumb, which has been frequently applied by federal courts: “[I]f the activity is one in which a private person could engage, it is not entitled to immunity.” Texas Trading, 647 F.2d at 309.

Is the activity contemplated by this contract activity “in which a private person could engage”? The Court thinks not. The text of the contract includes numerous terms which only a sovereign state could perform, and which no private firm or individual going into the market place could ever offer.

For instance, the Bolivian government agreed to “[rjelieve [PCI’s] expatriate staff from corporation and income tax, import duty and sales tax on imports, sales tax on services and stamp duty for the Contract otherwise imposed under the laws and regulations in effect in Bolivia in respect to” their activities under the contract. Appendix B, § VII B. Bolivia also agreed to provide for the “prompt duty free clearance through customs” of the supplies and personal effects of the PCI staff entering Bolivia. Id. Further, the government bound itself to “promptly provide” all required entry and exit visas, exchange permits, and travel documents. Id. MPC agreed to exercise the extent of its legal authority in expediting any necessary documentation for the expatriate staff, such as automobile registration, drivers’ licenses, and tax and duty exemption documents. Appendix A, § B. Finally, the contract entitled the expatriate staff to certain diplomatic privileges such as access to the U.S. Embassy Commissary and health facilities, and use of the embassy pouch for official and personal mail. Appendix B, § G.

The issue presented by these facts is the same issue that was anticipated in Gibbons v. Udaras na Gaeltachta, 549 F.Supp. 1094 (S.D.N.Y.1982). In that case, two American citizens sued an agency of the Republic of Ireland, with whom they had entered into a joint venture agreement for the establishment of an industrial enterprise in Ireland. The agency, Gaeltarra Eireann (“GE”), had informed the plaintiffs that the joint enterprise would qualify for certain tax incentives made available by Irish law. The court held that the defendant was not entitled to sovereign immunity since “[ejvery obligation undertaken by GE in the Joint Venture Agreement contemplated activity in which, by nature, a private party could engage.” Id. at 1110. In a footnote to that holding, however, the court remarked

The only arguable exception involves the tax incentives that GE told plaintiffs would be available for [the joint venture enterprise] and for plaintiffs as [its] proprietors[.] Plainly, a private party is not capable of unilaterally amending a prevailing tax statute in order to reduce another party’s prospective tax burden. Thus, GE did indeed engage in non-commercial activity if it arranged for plaintiffs to be afforded a special tax advantage under Irish law. However, the complaint alleges that the tax incentives in question were generally available under Irish law, and that GE merely apprised plaintiffs of the existence of these incentives ____ Therefore, accepting plaintiffs’ jurisdictional allegations as true, the tax aspect of the Joint Venture Agreement did not alter the purely commercial nature of GE’s participation in the Joint Venture Agreement. The Court thus need not decide the difficult question of the jurisdictional result that would flow from a mixed commercial/non-commercial activity such as would have existed here if GE, instead of being merely an entity designed to enable potential investors to take advantage of certain favorable Irish tax laws, had been given its own de facto law-making power in order to offer prospective investors special tax incentives as part of GE’s contribution to a joint venture.

Id. at 1110 n. 6.

The facts in the present case are even more compelling than those hypothesized in Gibbons. In addition to the tax exemption mentioned there, Bolivia promised PCI preferential bureaucratic treatment and diplomatic privileges. To paraphrase the holding of Gibbons, many of the obligations undertaken by Bolivia in the contract contemplated activity in which, by nature, a private party could not engage.

As we have seen, the commercial activity exception resembles an estoppel — foreign states who do business in the manner of private parties ought to be held to the same legal rules as private parties. See text at 869, supra. See also International Association of Machinists v. Organization of Petroleum Exporting Countries, 649 F.2d 1354, 1357 n. 6 (9th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1036, 71 L.Ed.2d 319 (1982). Under this rationale, there is nothing unfair about recognizing Bolivia’s sovereign immunity in this case. By granting special legal advantages to PCI Bolivia was acting in a manner very much unlike a private business participant. The nature of PCI’s performance would have been quite different if it had performed the same services for a private Bolivian concern. The commercial activity exception is therefore inapplicable.

2.

PCI insists that Bolivia has implicitly waived its sovereign immunity under section 1605(a)(1) of the Act by entering into the following arbitration agreement:

XIX. DISPUTES AND ARBITRATION
A. Any disputes arising under this Contract shall be submitted by the Contractor to MPC. MPC shall notify the Contractor of its decision within thirty (30) days of receipt from the Contractor of the written grievance or difference of opinion. The decision of MPC shall be final and conclusive unless within thirty (30) days from the date of receipt of such decision, the Contractor shall deliver to MPC notice of its intention to submit the dispute to arbitration.
B. Where disputes are submitted to arbitration, the parties agree to accept the decision of the arbitrators as final and binding on both parties. Each party shall have the right to appoint one arbitrator. The two arbitrators so appointed shall select a third arbitrator acceptable to the two appointed arbitrators.
C. Arbitration shall be conducted at a site determined by the arbitrators, in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce and Bolivian Law, and judgment upon the award may be entered in any court having jurisdiction thereof.

Appendix B, § XIX.

A passage from the FSIA’s legislative history reads:

With respect to implicit waivers, the courts have found such waivers in cases where a foreign state has agreed to arbitration in another country or where a foreign state has agreed that the law of a particular country should govern a contract.

House Report at 18, U.S.Code Cong. & Admin.News 1976, at 6617 (footnote added). This Court has relied on that statement to assume jurisdiction over foreign states that entered into arbitration agreements with private plaintiffs. Birch Shipping Co. v. Embassy of Tanzania, 507 F.Supp. 311, 312 (D.D.C.1980); Ipitrade International, S.A. v. Federal Republic of Nigeria, 465 F.Supp. 824, 826 (D.D.C.1978). But both of those cases involved proceedings that were directly related to the arbitration. Ipitrade concerned a petition for judgment on an arbitration award. Birch Shipping was a suit for execution on an arbitration award. PCI has not cited, nor has the Court’s own research revealed, any case where a court has invoked an arbitration agreement as the basis for depriving a foreign state of immunity from a suit on the merits of a dispute.

This distinction is controlling. The reasoning behind the pre-FSIA cases imprecisely referred to in the quoted passage of the House Report was “that [arbitration] agreements could only be effective if deemed to contemplate a role for [the] courts in compelling arbitration that stalled along the way,” MINE 693 F.2d at 1103, and that “[t]o hold otherwise would be to render the arbitration clause a nullity,” Victory Transport, Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354, 363 (2nd Cir.1964), cert. denied, 381 U.S. 934, 85 S.Ct. 1763, 14 L.Ed.2d 698 (1965) (suit to compel arbitration). See also Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103, 107 (2nd Cir.1966) (suit to compel arbitration). That logic does not extend to this case. The effectiveness of this arbitration clause does not depend upon this Court’s assumption of jurisdiction over a suit on the merits. On the contrary, an initial determination of the parties’ rights by this Court would be destructive of their intention to have disputes resolved by neutral arbitrators. Bolivia cannot therefore be said to have implicitly waived its immunity from this suit.

The Court’s conclusion is consonant with the strong judicial policy of encouraging international commercial arbitration in order to facilitate international trade and cooperation. E.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 2457, 41 L.Ed.2d 270 (1974) (“An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum selection clause that posits not only the situs ... but also the procedure to be used.”); MINE, 693 F.2d at 1102-04. As Chief Justice Burger has written in a closely related context:

The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts____ We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.

Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9, 92 S.Ct. 1907, 1912, 32 L.Ed.2d 513 (1972) (applying choice of forum clause in international contract). Accordingly, section 1605(a)(1) of the FSIA should not be construed to encourage federal courts to compete with or undermine freely agreed arbitration, but to ensure compliance with the agreement. Comment, Implicit Waivers of Sovereign Immunity by Consent to Arbitration, 18 Tex.Int’l L.J. 329 (1983).

CONCLUSION

For all of the preceding reasons, the Court determines that its default judgment against Bolivia is void, and that the case must be dismissed for lack of jurisdiction. The dismissal shall be without prejudice to resolution of the dispute in a proper forum.

It follows of course that the writs of attachment issued in furtherance of the judgment must be quashed. PCI’s motion for discovery sanctions, which requests an order precluding Corporación Minera de Bolivia from establishing its claim to the garnished accounts, is mooted.

An order conforming to this memorandum shall be filed herewith.

ORDER

This matter comes before the Court on Defendant’s Motion for Relief From Judgment by Default and for Dismissal of Suit and to Vacate Order of Execution, Plaintiff’s Motion for Judgment of Condemnation Against Garnishee, and Defendant’s motion to quash same, and Plaintiff’s Motion for Sanctions Against Claimant Corporación Minera de Bolivia. The Court has studied the entire record in this matter and has filed its Memorandum Opinion of even date. Wherefore, it is this 11th day of July, 1985

ORDERED that Defendant’s Motion for Relief From Judgment by Default and for Dismissal of Suit and to Vacate Order of Execution be and hereby is granted, and it is

FURTHER ORDERED that Defendant’s Motion to Quash Plaintiff’s Motion for Judgment of Condemnation Against Garnishee be and hereby is granted, and it is

FURTHER ORDERED that Plaintiffs

Motion for Sanctions Against Claimant Corporación Minera de Bolivia be and hereby is denied, and it is

FURTHER ORDERED that the default judgment entered in this matter against Defendant on July 28, 1983 be and hereby is vacated, and it is

FURTHER ORDERED that the orders of attachment issued in this matter on October 12, 1984 to National Bank of Washington and to Riggs National Bank be and hereby are vacated, and it is

FURTHER ORDERED that this case be and hereby is dismissed for lack of subject matter and personal jurisdiction with prejudice.

      . Bolivia offers a barrage of additional arguments in support of its motion: that the suit is barred by the act of state doctrine; that the Court should abstain from exercising jurisdiction in deference to the contract’s arbitration clause; that Bolivia’s failure to defend the action was the excusable result of "a broad divergence in [American and Bolivian] cultural, governmental, and political approaches to the present case”; and, that the judgment has been satisfied by virtue of a $249,700.00 consent judgment entered by the United States Claims Court against AID in favor of PCI. Because it considers the jurisdictional issue sufficient to decide the motion, the Court does not reach these other arguments.

      . For example, under section 1608(e) of the Act, notice of a default judgment against a foreign state must be served in the same specially prescribed manner as the original complaint. Additionally, section 1610(c) requires a court to make a determination that a reasonable period of time has elapsed following the entry and notice of judgment before it can order attachments or executions on the judgment.
      These procedural safeguards were afforded to Bolivia in this case. Service of the order directing entry of judgment was made both through registered international mail and, in Spanish translation, through diplomatic channels. See 28 U.S.C. §§ 1608(a)(3), (4). Over a year passed between Bolivia's first notice of the judgment and the Court’s orders of attachment against the embassy accounts. Upon issuance of the orders, the Court made a formal finding that this was a "reasonable time” under section 1610(c).

      . None of the cases cited in PCI's brief involved attacks on void judgments under clause (4). E.g., Planet v. Sullivan, 702 F.2d 123, 125 n. 2 (7th Cir.1983). That the "reasonable time" limitation was applied in those cases does not, therefore, contradict the cited rule.
      The Court also notes that, when a party attacks a judgment for voidness, there is no requirement that he show the existence of a meritorious defense, as he must under other clauses of the rule. Wright & Miller, § 2862 at 197.

      . For example, if the subsequent attack is unsuccessful, the defendant will have lost his chance to argue the merits of the suit. Furthermore, as happened in this case, he may suffer the inconvenience of having assets subjected to judicial process if he waits until execution begins to attack that judgment.

      . Of course, this litigant could seek to have the initial jurisdictional determination reversed for error on appeal.

      . PCI has attempted to place Bolivia’s attack on the judgment into this second category of cases by saying that Bolivia’s telegram of acknowledgment of receipt of service constitutes a general appearance. Plaintiff’s Memorandum in Opposition at 4. The mere return of process is not an "appearance.” See generally Wright & Miller, § 2868 at 430, 434-35 (”[a]n appearance in an action involves some presentation or submission to the court”).

      . The appendices are incorporated into the contract by Article IV A.

      . PCI has not explained why it did not seek to compel arbitration of the present dispute pursuant to this clause, except to say that once the contract was terminated, "all efforts at further communication with the Bolivian government [were] in vain.” Rosenberg Affidavit ¶ 11. PCI asserts that "Bolivia has long ago waived its right to demand arbitration,” Plaintiffs Memorandum in Opposition 31 n. 8, but the quoted provisions of the contract clearly put the burden of pursuing arbitration on PCI. Besides, Bolivia had no reason to initiate arbitration since it was PCI, not Bolivia, that was dissatisfied with the state of affairs that existed when the parties ceased communications. „

      . The contract is governed by Bolivian law. Appendix B, § VI.

      . The Court would have preferred Bolivia to support its motion with affidavits more extensive than the very brief statement of the MPC Subminister attached to its Reply Memorandum. But this deficiency does not prevent the Court from granting the motion. Even if it is controlled by Rule 56 [since the exhibits supporting it are "matters outside the pleadings," F.R.Civ.P. 12(b) ], the Court may grant the motion without affidavits if legal grounds therefor are established in some other way. Fletcher v. Evening Star Newspaper Co., 133 F.2d 395, 396 (D.C.Cir.) (per Curiam), cert. denied, 319 U.S. 755, 63 S.Ct. 1163, 87 L.Ed. 1708 (1942); Wright & Miller, § 2722 at 55 n. 25. Since the issues here are predominantly legal, not factual, the Court is satisfied in deciding the motion upon the documents introduced. See Wright & Miller, § 2722 at 60 n. 38.


author: GETZENDANNER, District Judge:

text:
    GRAPHIC COMMUNICATIONS UNION CHICAGO PAPER HANDLERS' & ELECTROTYPERS' LOCAL NO. 2, Plaintiff, v. CHICAGO TRIBUNE COMPANY and Chicago Newspaper Publishers' Association, Defendants.
    No. 84 C 10879.
    United States District Court, N.D. Illinois, E.D.
    July 11, 1985.

      Edwin H. Benn, Donald W. Cohen, Ash-er, Pavalon, Gittler and Greenfield, Chicago, 111., for plaintiff.
    Richard L. Marcus, Bruce J. Rasch, Reuben & Proctor, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

In this action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, plaintiff Chicago Paper Handlers’ & Electrotypers’ Local No. 1 (hereafter “Union”) seeks to compel arbitration of a dispute over a unilateral change in hiring practices instigated by defendant Chicago Tribune Company (“Tribune”). The matter is currently before the court on the motion of defendants Tribune and the Chicago Newspaper Publishers’ Association (“CNPA”) to dismiss, and the motion of plaintiff for summary judgment and for fees. For the reasons set forth herein, the motions to dismiss and for fees are denied, and the motion for summary judgment is granted.

FACTS

The following facts, as set forth in the exhibits to plaintiff’s complaint and the affidavit of William Roberts, Union president, are undisputed by the defendants and are therefore deemed admitted. See Local Rule 12(f). Plaintiff Union is a labor organization affiliated with the Graphic Communications Union, and represents all handlers of papers employed by defendant Tribune. Defendant CNPA is the Tribune’s bargaining representative. Plaintiff and the CNPA, on behalf of the Tribune, entered into a Collective Bargaining Agreement (“Agreement”) to become effective September 3, 1981 and to remain in full force and effect until September 3, 1984. (Complaint Exhibit “A”). That contract sets forth in detail matters pertaining to wages, hours, and working conditions but is silent on the question of hiring procedures. The Agreement contains no express “no strike” clause. Such an obligation is inferred, however, from the Agreement’s stated object “to prevent lockouts, boycotts, strikes and other forms of concerted action” in favor of conciliation, and from its requirements of mandatory arbitration.

The contract contains three arbitration clauses for implementing this “principle of conciliation.” First of these is an “interest arbitration” clause. Under that clause, any party proposing an amendment to the contract or a new contract to take its place upon expiration shall notify the other party sixty days prior to the expiration date. Failure to give notice shall be construed as a renewal of the Agreement on a year to year basis. If agreement in negotiating an amendment or a new contract proves impossible, the difference “shall be arbitrated.”

The second arbitration clause — the “speedy arbitration” clause — permits the Union to maintain the status quo with regard to the scale and hours provided in the Agreement or “mutually agreed to working conditions” pending the resolution of “grievance adjustment, conciliation or arbitration.” This provision applies “[i]n the event of a difference” but contains the caveat that working conditions shall remain unchanged pending arbitration only if “such working conditions are set forth in the contract or are the subject matter of agreements arrived at and reviewed by the parties.”

The final arbitration provision of the contract is a Joint Standing Committee clause for resolving “all questions, except those qualifying for adjudication under the ‘speedy arbitration’ provisions of this Section, which may arise as to the construction to be placed upon any of the clauses of this Agreement or any alleged violations thereof, which cannot be settled otherwise.” Nowhere else does the Agreement define or limit the power of the arbitrator.

In August 1984, the parties began negotiating a new contract. In accordance with prior practice, the company continued to maintain existing conditions after expiration while negotiations continued. On September 5, 1984, two days after the old contract expired, the Tribune advised the Union that, effective November 1, 1984, the Tribune would cease its forty-year old practice of using the Union’s referral procedures for hiring new and extra employees. (Complaint Exhibit “B”). The company’s stated reason for discontinuing the practice was to ensure that all hiring practices would be nondiscriminatory.

On September 7, 1984, Union president William Roberts wrote to the Tribune to protest the company’s unilateral discontinuance of the referral system. (Complaint Exhibit “C”). Roberts stated that utilization of the Union callroom had been a “mutually agreed to working condition from the inception of the collective bargaining relationship” and requested that the issue be referred to the Joint Standing Committee for arbitration if informal resolution proved impossible.

On September 11, 1984, the Tribune responded that its use of the callroom was not and had never been a mutually agreed to working condition. (Complaint Exhibit “D”). The Tribune stated that the Joint Standing Committee procedures were inapplicable because the contract was silent on referral procedures and advised the Union to take up further complaints with the CNPA.

On September 27, 1984, the Union notified the CNPA and formally requested a Joint Standing Committee meeting for arbitrating the contemplated action of the Tribune. (Complaint Exhibit “F”). The CNPA took the position that, since the dispute did “not involve any of the provisions contained in the written collective bargaining agreement between the CNPA and [the] union, such matters [could not] be properly entertained or decided by the Joint Standing Committee.” (Complaint Exhibit “H”). The Union followed up this letter with a formal demand for arbitration, which was again rejected. (Complaint Exhibits “I” and “J”). In late November, the Union prepared a submission to the American Arbitration Association to resolve both the issue of arbitrability as well as the underlying dispute. (Complaint Exhibits “N” and “0”). The CNPA again declined to arbitrate, (Complaint Exhibit “P”), and this suit followed on December 21, 1984.

Arbitrability

The legal rules underlying this dispute are too well settled to merit extended background discussion. Ever since the Steelworkers trilogy, it has been recognized that national labor policy favors arbitration as a means of resolving employee-employer disputes. Accordingly, federal courts have a limited role to play in § 301 suits seeking arbitration, and must uphold the duty to arbitrate wherever the bargaining agreement may reasonably be construed to impose such a duty: United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960).

An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.

At the same time, however, the duty to arbitrate is contractual in nature, and a party cannot be compelled to arbitrate a grievance absent some voluntary agreement to do so. Id. at 582, 80 S.Ct. at 1353. See also Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 374, 94 S.Ct. 629, 635, 38 L.Ed.2d 583 (1974). Stressing this language, defendants argue that they cannot be required to arbitrate a dispute which did not arise until after the bargaining agreement in question expired.

Whatever the logical merit of defendants’ position, applicable precedent establishes the opposite rule. In Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977), the Supreme Court held that, absent an arbitration clause which expressly excludes disputes based on events arising after termination of the contract, survival of the duty to arbitrate should be presumed. Id. at 253-55, 97 S.Ct. at 1073-74. See United Steelworkers v. Fort Pitt Steel Casting Division-Conval-Penn, Inc., 635 F.2d 1071, 1075 (3d Cir.1980), cert. denied, 451 U.S. 985, 101 S.Ct. 2319, 68 L.Ed.2d 843 (1981) (agreement to arbitrate will survive contract expiration absent express language or “clear implication” otherwise). Thus, under Nolde Bros., the fact that a contract dispute arises after the contract has expired is irrelevant to the duty to arbitrate; the proper question is instead whether the dispute is arguably within that contract’s arbitration clause.

Defendants have cited several recent cases in which the courts refused to order arbitration of disputes which arose after the term of the relevant bargaining agreement had expired. Every one of those cases, however, was decided on a basis immaterial to the present lawsuit. In O’Connor Co., Inc. v. Carpenters Local Union No. 1408, 702 F.2d 824 (9th Cir. 1983) , the Court held Nolde Bros, distinguishable because the dispute sought to be arbitrated arose under a master agreement which the company had never executed. In Diamond Glass Corp. v. Glass Warehouse Workers & Paint Handlers Local Union 206, 682 F.2d 301 (2d Cir.1982), and Milwaukee Typographical Union No. 23 v. Madison Newspapers, Inc., 444 F.Supp. 1223 (W.D.Wis.1978), aff'd, 622 F.2d 590 (7th Cir.1980), the respective plaintiff unions refused to provide any information which would indicate that their dispute arose under the expired agreement. Two other cases cited by defendants, Cement Masons Health & Welfare Trust Fund v. Kirkwood-Bly, Inc., 520 F.Supp. 942 (N.D.Cal.1981), aff'd. 692 F.2d 641 (9th Cir.1982), and Laborers Health & Welfare Trust Fund v. Hess, 594 F.Supp. 273 (N.D.Cal.1984) , do not even involve arbitration and are therefore altogether irrelevant.

Defendants also cite General Ware-housemen and Employees Union Local 636 v. J.C. Penney Co., 484 F.Supp. 130, 137 (W.D.Pa.1980) for the proposition that the Union must allege some facts to show that the parties agreed to extension of the arbitration clause at issue. In J.C. Penney, however, the bargaining agreement expressly limited the grievance mechanism to disputes “arising under and during the term of the agreement.” Stressing that Nolde Bros, stated a rule of presumptive and not absolute continuation, the Court found the above language sufficient to rebut the presumption and to require independent evidence of an agreement to extend the contract. Since the contract between the parties here contains no similar exclusionary clause, no such further evidence is required. The sole question is therefore whether the Agreement is susceptible of an interpretation which would make the present dispute arbitrable.

Defendants contend that the dispute over referral procedures is non-arbitrable because the contract nowhere contains explicit provisions referring to these procedures, and the parties have specifically limited grievances subject to arbitration to those which arise out of specific contract terms. As a necessary corollary to this argument, defendants insist that only the Joint Standing Committee clause is at issue in this dispute. While the Union does not appear to challenge this position, discontinuance of the referral system can be viewed as the Tribune’s proposal to amend the contract and the parties’ failure to reach agreement on the issue would constitute a “difference” which is arbitrable under the “interest arbitration” clause. However, the Union is not basing its position on the interest arbitration clause, but on the Standing Joint Committee provisions of the Agreement.

As stated earlier, the Joint Standing Committee provision provides for arbitration of all questions “which may arise as to the construction to be placed upon any of the clauses of this Agreement or any alleged violations thereof, which cannot be settled otherwise.” Defendants contend that this clause is limited to arbitration over specific contract terms, so that the silence of the contract on the callroom procedures is therefore fatal to plaintiff’s claim. This argument, however, ignores the express language of the Joint Standing Committee clause, which encompasses not only matters of contract construction but also any “alleged violations” of the Agreement. The Union has alleged that the Tribune’s forty-year old practice of hiring through the callroom was an implied obligation under the contract, and that the unilateral cancellation thereof is a violation of the Agreement which must be submitted to arbitration. (See Affidavit of William Roberts).

The weakness of defendants’ argument is apparent by comparing the Joint Standing Committee provision to the clause concerning “speedy” arbitration. The “speedy arbitration clause” provides for preservation of working conditions pending conciliation but only where such conditions “are set forth in the contract or are the subject matter of agreements arrived at and reviewed by the parties.” This contemplates that there could be working conditions not set forth in the contract. Since the Joint Standing Committee is empowered to resolve all contract questions other than those qualifying for speedy arbitration, the latter clause cannot reasonably be confined to disputes over specific contract terms, lest the entire clause be redundant.

Even ignoring the comparative language of the two provisions, defendants err in insisting that contractual silence is a defense to refusing to arbitrate a contract dispute. In Warrior & Gulf, the Supreme Court held that a promise to arbitrate differences “as to the meaning and application of the provisions” of a bargaining agreement encompassed a dispute over the employer’s contracting out of maintenance work, despite the agreement’s silence on the subject. The language of the Court is instructive for the present case:

[I]t is not unqualifiedly true that a collective-bargaining agreement is simply a document by which the union and employees have imposed upon management limited, express restrictions of its otherwise absolute right to manage the enterprise, so that an employee’s claim must fail unless he can point to a specific contract provision upon which the claim is founded. There are too many people, too many problems, too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties____ Within the sphere of collective bargaining, the institutional characteristics and the governmental nature of the collective-bargaining process demand a common law of the shop which implements and furnishes the context of the agreement.

363 U.S. at 579-80, 80 S.Ct. at 1351-52 (quoting Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1498-99 (1959). Under the rule of Warrier & Gulf, the continued past practice of utilizing union referrals for hiring is part of the contract although, not expressed in it, and therefore subject to the contractual provisions governing arbitration.

Attorneys’ Fees

Plaintiff has requested attorneys’ fees based on- defendants’ unjustified refusal to arbitrate. The opinions cited by plaintiff all contain express factual findings that the employer had refused to arbitrate “without justification or for frivolous reasons” so as to justify fees on grounds of bad faith. See, e.g., International Association of Machinists v. Texas Steel. Co., 538 F.2d 1116 (5th Cir.1976), cert. denied, 429 U.S. 1095, 97 S.Ct. 1110, 51 L.Ed.2d 542 (1977). While defendants’ arguments for refusing to arbitrate have all been rejected, the court did not find them to be so frivolous that a finding of bad faith should be inferred. Accordingly, the request for attorneys’ fees is denied.

CONCLUSION

The defendants’ motion to dismiss is denied, and the plaintiff’s motion for summary judgment is granted. The plaintiff’s request for attorneys’ fees is denied.

It is so ordered.

      . United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

      . J.C. Penney is relevant insofar as plaintiff argues that the Tribune’s practice of maintaining existing conditions during renewal negotiations constitutes a promise to extend the contract. In J.C. Penney, the Court held that a company promise not to make unilateral changes in the terms and conditions of employment absent an impasse in renewal negotiations was no more than a verbalization of the company’s legal obligations under § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5), and not a promise to extend the contract. 484 F.Supp. at 137. The Tribune’s post-expiration conduct of maintaining present conditions similarly falls short of an express promise to keep the expired contract in full force and effect. Accordingly, the court will rely solely on the terms of the 1981-1984 agreement to determine the issue of arbitrability.

      . Interest arbitration clauses have been held subject to the Nolde Bros, rule of presumptive survival. Hotel & Restaurant Employees and Bartenders Union, Local 703 v. Williams, 752 F.2d 1476 (9th Cir.1985). While such survivability may offend public policy concerns where the disputed contract terms involve nonmandatory subjects of bargaining, see NLRB v. Sheet Metal Workers Int'l Ass'n, Local Union No. 38, 575 F.2d 394, 398 (2d Cir.1978), that problem does not affect the present case.

      . Defendants apparently construe the phrase “alleged violations thereof" to mean violations of the aforesaid "clauses,” and not violations of the Agreement. The court rejects this interpretation as inconsistent with the presumptions favoring arbitrability. See Randall v. Lodge No. 1076, International Association of Machinists and Aerospace Workers, 648 F.2d 462, 467 (7th Cir.1981) (any doubts as to whether a contract excludes issues from arbitration must be resolved in favor of inclusion). However, for the reasons stated elsewhere in this opinion, the dispute would be arbitrable even accepting defendants’ proposed interpretation of the Joint Standing Committee clause.