author: GETZENDANNER, District Judge:

text:
    UNITED STATES of America ex rel. Hillis GOODMAN, Jr., Plaintiff, v. Michael LANE, et al., Defendants.
    No. 83 C 5556.
    United States District Court, N.D. Illinois, E.D.
    Oct. 22, 1984.

      Scott Graham, Bradley S. Bridge, Chicago, 111., for plaintiff.

      Jack Donaltelli, Asst. Atty. Gen., of 111., Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This petition for a writ of habeas corpus, 28 U.S.C. § 2254, is before the court on the motion for summary judgment of respondents Michael Lane and Richard DeRobertis. Petitioner Hillis C. Goodman, Jr. is an inmate at Stateville Correctional Center where he is serving terms of 25 years for murder and 15 years for armed robbery. Goodman was found guilty of these charges by a jury on April 24, 1980 and the presiding judge denied the motion for new trial on April 28, 1980. The Illinois Appellate Court confirmed the convictions and sentence on September 17, 1982. Goodman’s petition for leave to appeal was denied by the Illinois Supreme Court on February 1, 1983. Goodman thereafter filed this petition seeking relief based on two alleged constitutional errors in his trial.

In their Answer and Motion for Summary Judgment, respondents assert, and the court agrees, that Goodman has exhausted his remedies before the Illinois state courts. Respondents argue, however, that the alleged errors, considered on the merits, do not entitle Goodman to habeas corpus relief. They further claim that Goodman’s failure to object to the alleged errors both at trial and in post-trial motions constitutes waiver under ' Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The court agrees that Goodman has waived his right to raise these issues in this petition, and hence grants respondents’ motion for summary judgment in full.

Factual Summary

Goodman contends that he was denied his right to a fair trial and adequate representation of counsel when his attorney, Mr. Akim Gursel, was escorted into the courtroom in handcuffs on the first day of Goodman’s trial. The trial transcript reveals that on April 21, 1980, the presiding judge discussed with the venire members a “slight problem” that had occurred in the hallway just before the venire members were brought into the courtroom:

Mr. Gursel had a client elsewhere in the building this morning who wanted his presence, he has a client here who demands his presence. The distinguished Jurist before whom he first appeared this morning ordered him to remain down there and he complied with that order to remain where he was.
I did not order him to come up here, I sent my bailiff for him. Deputy Sheriff Holmes went and got him and to impress upon the minds of those in attendance that we mean business Mr. Holmes put handcuffs on him and brought him up here, so here he sits. He is somewhat despondent but he will get over it.

(Transcript 370.) It is not clear how many, if any, of the venire members saw the incident, although they all apparently were informed of the incident through the court’s comments. The court explained at length the trivial nature of the episode. (Tr. 368-371.) A reading of the transcript reveals that the episode is consistent with the court’s often humorous courtroom style. Gursel did not object to the incident, either at trial or in his general post-trial motion.

Goodman also contends that the introduction of hearsay statements violated his right to confrontation of witnesses. Goodman’s younger brother, Bobby Goodman, and his former girlfriend, Karen Pugh, both gave statements to police officers that Goodman committed the murder and armed robbery with which he was charged. The two investigators that received these communications testified at trial and on re-redirect and re-direct examination described the content of those statements to the jury. As above, Gursel did not object to the introduction of the hearsay evidence either at trial or in his motion for new trial.

Goodman raised these issues on appeal, claiming that they were not waived by failure to object, one, because Goodman’s nonspecific motion for new trial reserved all errors, and two, because Illinois’s “plain error” exception to waiver allowed review. The Illinois Appellate Court found both of these errors waived.

Waiver

Illinois Procedural Barriers

Illinois law imposes two procedural hurdles on the preservation of trial errors for appeal. First, failure to object at trial generally waives error on appeal. People v. Carraro, 77 Ill.2d 75, 31 Ill.Dec. 817, 394 N.E.2d 1194 (1979). This is so even if the error is of constitutional dimension. People v. Hyche, 77 Ill.2d 229, 32 Ill.Dec. 893, 396 N.E.2d 6 (1979).

In addition to this “contemporaneous objection” rule, Illinois imposes a requirement that errors be preserved in a post-trial motion. Under Ill.Rev.Stat. ch. 38, 11116 — 1(b), a defendant must file a written motion for new trial within 30 days of verdict. Issues not raised therein cannot be urged as reasons for dismissal on appeal. People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856 (1973). A non-specific oral motion may be made at the close of trial if the state does not object, although it is unclear what errors such a motion preserves. The most recent Illinois authority holds that such a motion preserves errors “properly preserved in the record.” People v. Pearson, 88 Ill.2d 210, 58 Ill.Dec. 739, 430 N.E.2d 990 (1981); People v. Denby, 102 Ill.App.3d 1141, 58 Ill.Dec. 475, 430 N.E.2d 507 (5th Dist.1981); People v. Robinson, 92 Ill.App.3d 972, 48 Ill.Dec. 520, 416 N.E.2d 793 (5th Dist.1981); People v. Harrawood, 66 Ill.App.3d 163, 22 Ill.Dec. 899, 383 N.E.2d 707 (5th Dist.1978). This court is uncertain whether this exception includes errors to which no objection was made at trial. There clearly exist issues that are not preserved by a non-specific post-trial motion because of failure to object at trial. See e.g., People v. Denby, supra.

Even if an issue is waived under the above procedural rules, a reviewing court may review the merits of a claim under Illinois’s “plain error” exception. Ill.Rev. Stat. ch. 110A, 11615(a); People v. Bennie-field, 88 Ill.App.3d 150, 43 Ill.Dec. 455, 410 N.E.2d 455 (1st Dist.1980).

Illinois Appellate Decision

In the present case, Goodman presented the two claims now before the court to the Illinois Appellate Court. The state responded by arguing both the merits and the waiver of the claims. The Court responded to the handcuffing incident as follows:

We first comment that defense counsel did not object, which would generally act as a waiver of this issue. [Citations omitted.]
Moreover, this is not an appropriate case to invoke the plain error rule [citation omitted] in light of the overwhelming evidence of defendant’s guilt. Additionally, the trial court explained in detail to the jury the necessity of such action and admonished any juror that may have witnessed the incident to disregard it. Where it does not appear evident in the record that defendant was prejudiced by these remarks, a judgment will not be reversed. [Citation omitted.]

People v. Goodman, 108 Ill.App.3d 1209, 68 Ill.Dec. 583, 446 N.E.2d 317 (Ill.App. 1st Dist. Sept. 17, 1982) (Order Disposing of Appeal Under Supreme Court Rule 23). This language clearly indicates that the Illinois Appellate Court determined, first, that Goodman waived appeal of this issue, and second, that Goodman could not demonstrate that review should be had under the ¶ 615(a). Goodman counters that the last two sentences constitute a decision on the merits.

With respect to the introduction of hearsay, the Court first described at length the facts concerning that testimony. It then briefly explained Illinois law regarding the admission on re-direct examination of inadmissible evidence. Under those Illinois rules, evidence initially inadmissible may become admissible when the objecting party interjects issues concerning that evidence into a case. The Court indicated that the hearsay evidence in question was “made an issue in the case by defense counsel on cross-examination.” Id. at 13. Finally, the Court explained:

Moreover, defendant failed to object to the testimony in question, thus waiving this as an issue for consideration on review. [Citation omitted.] Nor can plain error be asserted unless it is clear from the record that an error affecting substantial rights was committed. [Citation omitted.] The evidence against defendant is overwhelming in view of his signed confession admitting to the homicide. Thus, in light of the circumstances, it was not error to admit these statements into evidence.

Id. at 14. The parties dispute whether the Illinois Court considered the merits of these two claims, or whether it applied a procedural bar to such consideration. Respondents contend that the discussion of Illinois law is included only as part of the Court’s assessment of the “plain error” exception. It is clear, however, that a procedural bar was at least an alternative holding.

Federal Law of Waiver

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the petitioner raised claims on which the state court had not been given an opportunity to rule because such claims had not been presented to that court in the manner prescribed by the state’s procedural rules. In that case, state law required any objections to the admission of a confession to be made at trial or not at all. The Sykes Court held that such a procedural bar “amount[s] to an independent and adequate state procedural ground which would have prevented direct review here.” Before a petitioner may raise a claim that was not presented to the state courts, therefore, the petitioner must demonstrate both “cause” and “prejudice” attendant to the state procedural waiver. Id. at 87, 97 S.Ct. at 2506. This rule was recently reiterated in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), where the Court held that the cause and prejudice test applies to issues not presented to the state courts for review, even where the constitutional issue thereby waived relates to the truthfinding function of the trial. Id. at 129, 102 S.Ct. at 1572.

The Seventh Circuit has held that failure to raise an issue on appeal would bar federal habeas relief as well unless the Sykes cause and prejudice test were met. Norris v. United States, 687 F.2d 899, 903 (7th Cir.1982); United States ex rel. Veal v. DeRobertis, 693 F.2d 642 (7th Cir.1982). Veal concerned a § 2254 petition raising claims that were denied by the Illinois Appellate Court on both procedural and substantive grounds. 693 F.2d at 650. Because the procedural bar was one of the express reasons behind the Court’s holding in denying the reversal, the Seventh Circuit found that the case “was decided in part on an independent state procedural ground to which Sykes and Isaac apply.” Id. It therefore remanded the case to the district court to determine if cause and prejudice could be demonstrated.

The Veal Court reiterated the holding in United States ex rel. Williams v. Franzen, 687 F.2d 944 (7th Cir.1982), that where a state court ignores procedural bars and decides an issue on the merits, the federal court must review the merits in the habeas corpus petition as well. Id. at 951. According to Franzen,

[t]he policies underlying deference to a state procedural rule are inapplicable where the state itself does not apply or enforce the rule. When a state court ... goes beyond the alleged waiver to rule on the merits, a federal court can also reach the merits of the claim without the cause-prejudice standard being met.

Id. The Court distinguished Franzen by noting that in Veal, the Illinois Appellate Court expressly found that a procedural bar was one of the reasons for its holding.

Procedural bars were at least the alternative bases for denying the relief requested on appeal in this case. In discussing the procedural waiver, the reviewing court also denied the applicability of the Illinois “plain error” exception. Case law establishes that the denial of such an exception also constitutes an independent and adequate state procedural bar to collateral attack.

Hockenbury v. Sowders, 620 F.2d 111 (6th Cir.1980) (Hockenbury I), reh’g en banc denied, 633 F.2d 443 (6th Cir.1980) (Hockenbury II), cert. denied & reh’g denied, 451 U.S. 933, 101 S.Ct. 2011, 68 L.Ed.2d 320 (1981), examined the state court’s “contemporaneous objection” rule, which, as in Illinois, allowed review of waived issues under a “manifest injustice” exception. In Hockenbury I, the Sixth Circuit held that the federal district court could not make an independent assessment of “plain error,” but must defer to the state court’s decision regarding its contemporaneous objection rule and the exceptions thereto. 620 F.2d at 114. The Court went on to examine whether the state courts reached the merits of the federal claims presented in the habeas writ to determine whether the procedural default was waived. Hockenbury II stresses that the federal courts should not independently review whether a particular trial error falls within a state’s “plain error” exception to procedural barriers.

Other courts have agreed with the approach of the Sixth Circuit regarding so-called “plain error” review. In Runnels v. Hess, 653 F.2d 1359 (10th Cir.1981), the Court followed the Hockenbury decisions in determining the deference to pay to the state court’s finding that the waived trial error was not reviewable under that state’s “fundamental error” exception to waiver. Id. at 1363. Hence, a decision not to review the merits of the claim under a “plain error” exception to procedural waiver is an independent and adequate state ground precluding review of the underlying issue in a petition for a writ of habeas corpus. See United States ex rel. Huckstead v. Greer, 737 F.2d 673, 677 (7th Cir.1984).

A finding of procedural waiver, however, does not end the inquiry. It is clear that when a state court declines to apply its procedural waiver rules, the federal court on collateral review need not be constrained thereby. Francis v. Henderson, 425 U.S. 536, 542 n. 5, 96 S.Ct. 1708, 1711 n. 5, 48 L.Ed.2d 149 (1975); Franzen, supra. Hence, a question is raised as to whether a state has rendered a decision based on the procedural rule such that Sykes and its progeny apply. Goodman argues here that the appellate court reviewed his claims on the merits, thereby waiving the procedural barriers to appellate review.

In United States ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3d Cir.1982), the Court reviewed the ways in which federal courts have interpreted state decisions in which the basis for the holding is unclear. Id. at 439-40. Some courts deem the discussion of the merits to be dictum and find that the decision was reached solely through application of procedural rules. Others, like that in Hockenbury I, decline to review the merits of the federal claim where the procedural barrier was a “substantial basis” for the state court’s ruling. In Hockenbury I, the Court examined the underlying decision and found that, as in this case, the decision “made a cursory review of petitioner’s substantive claim.” It found that the review of the merits was necessary in order to assess the applicability of the “manifest injustice” exception, and that the procedural waiver was therefore a substantial basis for denial of relief. 620 F.2d at 115. Accord Dietz v. Solem, 640 F.2d 126, 131-32 n. 1 (8th Cir.1981). Finally, some circuits require the state ruling to rely exclusively on the procedural default before the Sykes test must be met. Rogers v. McMullen, 673 F.2d 1185, 1188 (11th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 740, 74 L.Ed.2d 961 (1983); Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir.1981); Bradford v. Stone, 594 F.2d 1294, 1296 n. 2 (9th Cir.1979).

The Seventh Circuit clearly held in Veal that where the state court relied on substantive and procedural grounds in the alternative, cause and prejudice must be shown before review of the federal claims could be had. Accord Jentges v. Milwaukee County Circuit Court, 733 F.2d 1238, 1243 n. 1 (7th Cir.1984); Zelinsky, 689 F.2d at 440; Phillips v. Smith, 717 F.2d 44, 48-50 (2d Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 1287, 79 L.Ed.2d 689 (1984). Since relief from both errors in this case was denied at least alternatively on state procedural grounds, review in this court has been waived. Alternatively, the cursory review of the merits of the claims, coupled with the lack of any federal citation, support respondents’ claim that there was no holding on the merits, and the procedural waiver constituted the sole reason for denial of relief. These holdings require satisfaction of the Sykes cause and prejudice test.

Cause and Prejudice

Goodman initially did not articulate satisfaction of the Sykes test. In his responding memorandum, he argues only that Gursel was intimidated by the trial court into not raising appropriate objections. Goodman has raised no other reason for the defaults.

The exact meaning of “cause” was left open by the Court in Sykes, although it noted:

Whatever precise content may be given those terms by later cases, we feel confident in holding without further elaboration that they do not exist here. Respondent has advanced no explanation whatever for his failure to object at trial____

433 U.S. at 91, 97 S.Ct. at 2508. There, inculpatory statements of the petitioner were admitted without objection that they may have been obtained in violation of petitioner’s constitutional rights. In Isaac, the Court found that failure to raise a constitutional claim because of perceived futility alone cannot constitute cause. 456 U.S. at 131 n. 36, 102 S.Ct. at 1573 n. 36. However, an explanation of the content of the “cause” test remains elusive.

Recent decisions in this circuit have similarly failed to provide guidance on the meaning of “cause.” See Jentges, 733 F.2d at 1244; Weber v. Israel, 730 F.2d 499, 504 (7th Cir.), cert. denied, — U.S. ---, 105 S.Ct. 167, 83 L.Ed.2d 103 (1984); Sullivan v. Fairman, 731 F.2d 450 (7th Cir.1984). This Circuit has not yet decided whether ineffective assistance of counsel, short of that necessary to satisfy the Sixth Amendment standard, may satisfy the “cause” part of the test. Greer, 737 F.2d at 677. (Goodman has never raised a claim of ineffective assistance of trial or appellate counsel.) The court will assume for purposes of this motion that ineffective assistance of counsel may constitute “cause.”

Hearsay Testimony

The court’s review of the record establishes that Goodman cannot demonstrate “cause” for failing to object to the introduction of the hearsay evidence by Officers Baranowski and Toenings. These officers had taken statements by Goodman’s brother Bobby and his girlfriend Karen Pugh that Goodman committed the armed robbery and murder with their participation. According to the transcript, before the officers testified, counsel for Goodman and the state discussed with the court the potential problems with the expected testimony. The parties agreed that the officers could testify to a prior robbery accusation against Goodman on the condition that the testimony also include the fact that no charges were brought. (Tr. 680-681.) This accusation was brought by Bobby against Goodman quite near in time to Bobby’s statement that Goodman committed the charged armed robbery and murder. After checking Goodman’s alibi regarding Bobby’s first allegation, it was determined that no charges relating thereto could be lodged.

After agreeing to mention that no charges were brought relating to the first robbery accusation, the prosecution then brought up the issue of hearsay statements by Bobby and Karen Pugh, indicating to the court that introduction of that evidence, probably not admissible, was not planned. The prosecution indicated that time was needed in which to educate the witnesses not to mention the hearsay. (Tr. 682-685.) Throughout this discussion, Gursel never stated that he objected to admission of the testimony. In fact, he seems at one point to indicate that he did not mind “telling about a homicide.” (Tr. 682.)

At trial, Gursel cross-examined the two officers vigorously. His strategy was clearly directed to establishing that Goodman’s brother Bobby (who could not be located) committed the murder and then implicated Goodman. (See Tr. 757-58, 760, 763-64, 858-59, 879-81, 885-86, 924-25, 930, 1035.) Often his questions made little sense without the information that Bobby had implicated Goodman in the charged crimes. Bobby’s accusation against. Goodman was presented as just another false accusation against his brother. (E.g., Tr. at 1035.) Gursel examined the family quarrels and also sought to paint Bobby as someone out to get his brother. It is clear that Gursel knew how to object to testimony, since he frequently objected to testimony, and made objections during the testimony now before the court. (E.g., Tr. at 889.)

The court finds, therefore, that Gursel’s failure to object to the hearsay testimony was most likely express, a “deliberate bypass” as that term is defined in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). This conclusion is supported by several facts in the record. First, Gursel expressed little or no interest in the prosecution’s concern with the hearsay statements. Second, Gursel’s object was to explain away Goodman’s detailed confession. (The admissibility of the confession was challenged in a lengthy suppression hearing, was admitted by the trial court, and was upheld on appeal.) Goodman claimed at trial that the police officers put words in his mouth, and it is consistent with this theory that the details of the crime that were “fed” to Goodman were obtained by Bobby or Pugh. Third, Gursel made no objection to the hearsay testimony and used it in his own argument. Hence, the failure to object was likely express trial strategy, and “cause” has not been established. Even were the testimony not an express part of Gursel’s trial strategy, it was at least consistent with his own defense.

It could be argued that this strategy was so wrong-headed as to constitute ineffective assistance of counsel and thus “cause” for the procedural default. However, given Goodman’s confession and Bobby’s prior false accusation against Goodman, the court is unconvinced that such a strategy alone demonstrates ineffective assistance of counsel.

The court also rejects the claim that Gursel was intimidated into not making objections. A thorough reading of the trial transcript reveals frequent instances in which Gursel made objections and argued vigorously with witnesses, in closing argument, and even with the court. There is simply no support for the claim that the trial court’s attitude to Gursel, evidenced by the handcuffing incident, prevented aggressive representation by Gursel.

Handcuffing Incident

The record also fails to reveal cause for the failure to object to the handcuffing of Gursel outside of the courtroom at the time of the voir dire. As explained above, there is no support for Goodman’s claim that Gursel was intimidated by the trial court after the incident, since a reading of the transcript demonstrates that Gursel’s representation was competent and aggressive. However, even were Gursel so chastened by the incident that directly thereafter he was incapable of objecting, prejudice has not been shown. It is unclear whether any jurors even saw the incident, and the court’s lengthy explanations thereafter substantially corrected the effect it could have had. Moreover, the trial court’s humorous courtroom style do much to put the event in perspective as at most a type of practical joke, however inappropriate. Third, Gursel’s competent courtroom behavior and his clear lack of intimidation by the incident lessened any prejudicial impact. Finally, the evidence against Goodman, namely a signed, detailed confession, further supports the court’s finding that prejudice did not result from this incident.

Conclusion

Based on the waiver doctrine of Wainwright v. Sykes, the petition for a writ of habeas corpus is denied in full without a hearing.


source: Caselaw Access Project

license: Public Domain

text:
    William A. RANSOM, Petitioner, v. Herman C. DAVIS, etc., et al., Respondents.
    Civ. A. No. 3:84-1120.
    United States District Court, M.D. Tennessee, Nashville Division.
    Oct. 24, 1984.
    William A. Ransom, pro se.
    Jerry Smith, Asst. Atty. Gen., Nashville, Tenn., for respondents..
   MEMORANDA OPINIONS, ORDERS AND CERTIFICATE

NEESE, Senior District Judge, Sitting by Designation and Assignment.

The petitioner Mr. William A. Ransom applied pro se for the federal writ of habeas corpus, claiming that he is in the custody of the respondent-warden pursuant to the judgment of an unspecified date of the Probate Court of Davidson County, Tennessee in violation of the Constitution, Fourteenth Amendment, Due Process Clause. 28 U.S.C. § 2254(a). He claims he raised the same questions presented here on direct review of his appeal of his judgment of conviction with the Court of Criminal Appeals of Tennessee, which affirmed the judgment of his conviction, and that he was denied permission to appeal further on August 27, 1984 by the Supreme Court of Tennessee. 28 U.S.C. §§ 2254(b), (c).

Inter alia, the applicant claims he was denied federal due process of law when the attorney for the state of Tennessee prosecuting him stated to the jury in a single instance in his final summation in the sentencing proceedings of the applicant that defense counsel “ * * * wants you * * * to violate your oath * * *.” Even if correct, the applicant is entitled to no relief on this claim of a violation of his federal right to due process of law.

The classic case on prosecutorial misconduct continues to be Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Berger was indicted on a charge of conspiring to utter counterfeit federal-reserve notes; the Supreme Court found such a highly probable circumstance of prejudice to the accused from the pronounced and persistent misconduct of the prosecuting attorney throughout the trial on the issue of Berger’s guilt or innocence that the conviction was reversed. Id., 295 U.S. at 89, 55 S.Ct. at 633.

However, the Court was careful to point-out inter alia:

* * * If the case against Berger had been strong, or, as some courts have said, the evidence of his guilt was “overwhelming,” a different conclusion might be reached. * * * Moreover, we have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential. * * *

Id. The single instance of a remark by the prosecuting attorney herein, while certainly not approved by this Court, occurred in the sentencing proceeding after the applicant’s guilt had been determined already; in that situation, it must be concluded that the case against the applicant was strong and the evidence overwhelming enough to have removed any reasonable doubt of the petitioner’s guilt. Even for purposes of trial error, as in Berger, supra, reversal would not have been indicated in such a circumstance, so certainly there was no constitutional infringement federally.

The applicant claims also such a violation depriving him of a fair trial in the sentencing portion of his trial from the failure of the prosecution to call for an amendment of the indictment returned against him to reflect the true facts when it became undisputed that two previous convictions of the applicant under two counts of an indictment, as to which he received concurrent sentences, were, for purposes of the habitual-criminal offense, to be considered as only one conviction. This was not a violation of federal due process:

The sufficiency of the indictment does not raise a federal-constitutional issue cognizable in a proceeding in habeas corpus when, as here, the notice to the accused person in the indictment fairly, even if imperfectly, apprises the accused person of the offense for which he or she is to be tried. Blake v. Morford, 563 F.2d 248, 250 (6th Cir.1977), cert. den., sub nom. Blake v. Thompson, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). The federal Constitution permitted the state of Tennessee to enact the habitual-criminal statute it chose “ * * * and to admit evidence during trial to prove allegations required under th[at] statutory scheme. * * * ” Spencer v. State of Texas, 385 U.S. 554, 565-66, 87 S.Ct. 648, 654 [5], 17 L.Ed.2d 606 (1967), cited in McGautha v. California, 402 U.S. 183, 221, 91 S.Ct. 1454, 1474 [5], 28 L.Ed.2d 711 (1971), reh. den., 406 U.S. 978, 92 S.Ct. 2407, 32 L.Ed.2d 677 (1972).

It is claimed further by the applicant that his right to federal due process of law was violated also when the trial Court excused for cause prospective jurors after they stated their respective inabilities to follow the law as given them by the trial judge in response to voir dire by the prosecuting attorney without further examination by the trial judge as purportedly required by Rule 34, Tenn.R.Crim.P. This could be nothing more than a perceived error of the law of Tennessee; “ * * * [a] federal court may not issue the writ [of habeas corpus] on the basis of a perceived error of state law. * * * ” Pulley v. Har ris, 465 U.S. 37, ---, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984).

It appears plainly thus from an examination on preliminary consideration of the face of the applicant’s petition that he is not entitled to any relief in this Court as to any of the three federal-constitutional claims. Rule 4, 28 U.S.C. fol. § 2254. It hereby is

ORDERED that the petition herein is DISMISSED summarily, id.; that the clerk so notify the petitioner forthwith, id.; and that the clerk serve forthwith by certified mail on the respondent-warden and the attorney general and’ reporter of Tennessee copies of the petition herein and of this order, id.

Should the petitioner give timely notice of an appeal from this order and the judgment to be entered thereon by the clerk, Rule 58(1), F.R.Civ.P., he is authorized to proceed thereon in forma pauperis, Rule 24(a), F.R.App.P. Any such notice will be considered also as an application for a certificate of probable cause, Rule 22(b), F.R. App.P., which WILL issue in the light of the interpretative nature of this order.

       Sitting by interchange with the Criminal Court of Davidson County, Tennessee.


author: ALTIMARI, District Judge:

text:
    Jill S. STEINBERG, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE and the Food & Nutrition Service (Family Nutrition Programs), Defendants.
    No. CV-83-5111.
    United States District Court, E.D. New York.
    Nov. 26, 1984.
    Jill S. Steinberg, plaintiff pro se.
    Raymond J. Dearie, U.S. Atty., E.D.N.Y. by Anne E. Stanley, Asst. U.S. Atty., Brooklyn, N.Y., for defendants.
   ALTIMARI, District Judge:

This is an action brought by plaintiff Jill S. Steinberg, pro se, acting through her father, Maurice Steinberg, which asks this court to determine the validity of the United States Department of Agriculture’s decision to discontinue Ms. Steinberg’s monthly allotment of food stamps, as well as to order that plaintiff receive her back benefits, retroactive to September, 1982. In essence, Ms. Steinberg challenges the constitutionality of the 1981 amendment of the definition of “household” under the Food Stamp Act, 7 U.S.C. § 2012(i), and the regulations promulgated thereunder. 7 C.F.R. § 273.1(a)(3)(i) (1984). Defendants have moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure or, in the alternative, for dismissal of the complaint for failure to state a cause of action, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Since various documents outside of the pleadings have been submitted in connection with this motion, the court must treat it as one for summary judgment. See Fed.R.Civ.P. 12(b).

BACKGROUND

Plaintiff Jill Steinberg was born on February 16, 1950 and has been disabled since birth. Ms. Steinberg receives public assistance from the Medicaid program of the Nassau County Department of Social Services, as well as Supplemental Security Income benefits. (Complaint, 1) She resides with her parents at their home in Carle Place. Plaintiff’s authorization for food stamp benefits was discontinued by the Nassau County Department of Social Services as of the end of September, 1982. Plaintiff appealed this decision to the State of New York Department of Social Services and, thereafter, on November 5, 1982, a Fair Hearing was held on plaintiff's claim. The Fair Hearing decision, dated November 17, 1982, upheld the discontinuance of benefits, based upon the amended definition of household in the Food Stamp Act. Apparently, plaintiff thereafter filed a petition pursuant to Article 78 of New York’s Civil Practice Laws and Rules challenging this determination. However, the outcome of this proceeding remains a mystery to the court, since neither party supplied the court with information in that regard. In any event, it is clear, from plaintiff’s complaint and from oral argument held in open court, that the plaintiff basically seeks a determination as to the validity of the amendment of the Food Stamp Act. Since there are no genuine issues of material fact in dispute, this issue is properly before the court on this motion for summary judgment. See Fed.R.Civ.P. 56.

THE STATUTE AND REGULATIONS

Section 2012(i) provides, in pertinent part:

“Household” means (1) an individual who lives alone or who, while living with others, customarily purchases food and prepares meals for home consumption separate and apart from the others, or (2) a group of individuals who live together and customarily purchase food and prepare meals together for home consumption even if they do not do so, unless one of the parents, or siblings, is an elderly or disabled member.

7 U.S.C. § 2012(0.

The regulations issued pursuant to this statute provide, in part:

(3) In no event shall nonhousehold member status ... or separate household status be granted to:
(i) Parents living with their natural, adopted, or step children or such children living with such parents, unless at least one parent is elderly or disabled as defined in § 271.2;
(ii) Children under 18 years of age under the parental control of an adult member of the household; or
(iii) A spouse of a member of the household (as defined in § 271.2).
(iv) Siblings (natural, adopted, half or step brothers and sisters), unless at least one sibling is elderly or disabled as defined in § 271.2.

7 C.F.R. § 273.1(a)(3) (1984). An “elderly or disabled” person, as defined by the regulation, means a household member who is 60 years of age or older, receives supplemental security income, disability, or blindness benefits under the Social Security Act, or meets certain designated veteran-related disability criteria. 7 C.F.R. § 271.2 (1984).

It is clear that at the time of the discontinuance of Ms. Steinberg’s food stamp benefits, she was living with her parents, both of whom were under 60 years of age and not disabled. Subsequent to the decision which resulted in the discontinuance of benefits, Mr. Steinberg, Jill’s father, did in fact become 60 years of age. Therefore, the amended definition of household no longer acts as a bar to plaintiffs receipt of benefits. It is the government’s position that this being so, the instant action is rendered moot and plaintiff lacks standing to maintain her claim. The court is not wholly convinced of the merit of this argument, since plaintiff seeks damages for benefits allegedly wrongfully withheld. Since there is a possible claim for at least nominal damages, it is appropriate to look beyond defendants’ mootness argument, and to view the viability of plaintiff’s claim on substantive grounds. See 13A C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 3533.3 (1984).

THE CONSTITUTIONALITY OF THE CURRENT DEFINITION OF HOUSEHOLD UNDER THE FOOD STAMP ACT

Plaintiff challenges the constitutionality of the amended definition of household under the Food Stamp Act, alleging that the enforcement of the definition “is discriminatory in that it deprives her of equal rights and protection of law because she is disabled since birth and by nature of her disability resides in the home of her parents.” (Complaint, par. 1).

It is well-settled that legislation conferring monetary benefits is entitled to a strong presumption of constitutionality. See Schweiker v. Wilson, 450 U.S. 221, 238, 101 S.Ct. 1074, 1085, 67 L.Ed.2d 186 (1981); Mathews v. DeCastro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976); Price v. Heckler, 733 F.2d 699, 701 (9th Cir.1984).

In Schweiker v. Wilson, supra, the Supreme Court recently reiterated the standard to be applied in assessing the constitutionality of such legislation:

“In the area of economics and social welfare, a State does not violate the Equal Protection Clause [and correspondingly the Federal Government does not violate the equal protection component of the Fifth Amendment] merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequity.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S.Ct. 337, 340, 55 L.Ed. 369].” Dandridge v. Williams, 397 U.S. [471], at 485, 90 S.Ct. [1153], at 1161 [25 L.Ed.2d 491].
The Court also has said: “This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 1314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976). See also United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). As long as the classificatory scheme chosen by Congress rationally advances a reasonable and identifiable governmental objective, we must disregard the existence of other methods of allocation that we, as individuals, perhaps would have preferred.

450 U.S. at 235, 101 S.Ct. at 1082-83; see Weinberger v. Salfi, 422 U.S. 749, 768, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975); Cospito v. Heckler, 742 F.2d 72, 83 (3d Cir.1984).

It is clear that the legislation involved in the present action satisfies this standard of review. The food stamp program was established in 1964 to address the problem of hunger and malnutrition among the needy of this country. Congress declared that “[t]o alleviate such hunger and malnutrition, a food stamp program is herein authorized which will permit low-income households to purchase a nutritionally adequate diet through normal channels of trade by increasing food purchasing power for all eligible households who apply for participation.” 7 U.S.C. § 2011.

The legislative history of the recent amendment of the definition of household reveals that the intent of Congress was to “prevent artificially splitting households by requiring non-elderly parents and their children to apply as one food stamp household. ...” S.Rep. No. 97-139, 97th Cong., 1st Sess. 34 (1981), reprinted in 1981 U.S. Code Cong. & Ad.News 396, 424. Congress sought to reduce the number of fraudulent claims for food stamp benefits and thereby reduce program costs. The Congressional Budget Office estimated that the family household requirement, as well as another provision not involved herein, would reduce program costs by $59 million in fiscal year 1982, and as much as $71 million by fiscal year 1984. Id. at 53, 1981 U.S.Code Cong. & Admin.News at 443.

The Senate Report states:
The [household definition] provision would require that parents and children who are living together would always be defined as a single household unit, regardless of whether they purchase food and prepare meals together. An exemption from this requirement is provided for households where at least one parent is 60 years of age or older, in which case the parent(s) could apply as a separate household. Under present law, family units may apply as separate households and receive larger benefits if they claim to purchase food and prepare meals separately, even though the children are totally supported by the parents.
These provisions would not disqualify legitimately poor households that apply as single household units, they would merely require that these households apply as single households rather than splintering for the purpose of receiving higher benefits.

Id. at 52-53, 1981 U.S.Code Cong. & Admin.News at 442-43; see also S.Rep. No. 97-504, 97th Cong., 2d Sess. 24 (1982), reprinted in 1982 U.S.Code Cong. & Ad. News 1641, 1662, 1664.

Surely, this court cannot question seriously the wisdom of Congress’ policy determination that family members living under the same roof who choose, for whatever reason, not to share meals should not receive the same benefits as those otherwise similarly situated family members who modify their meal preparation patterns and share their meals. It is clear that the amended definition of household “rationally advances a reasonable and identifiable governmental objective,” see Schweiker v. Wilson, supra, 450 U.S. at 235, 101 S.Ct. at 1082, i.e., the elimination of recipient fraud and the allocation of finite benefits. See Levesque v. Block, No. C82-437-L, slip. op. at 7-8 (D.N.H. Jan. 26, 1983) (Loughlin D.J.) (amended statute defining household is constitutional); cf. Termini v. Califano, 611 F.2d 367, 370 (2d Cir.1979). Further, although plaintiff contends that the amended statute operates to discriminate against her because she is disabled, the statute makes no such classification regarding disability, and there is no evidence of congressional intent to so classify applicants.

In Schweiker v. Wilson, supra, the issue before the Supreme Court was the constitutionality of the exclusion from Supplemental Security Income benefits under the Social Security Act of otherwise eligible individuals between the ages of 21 through 64 who are institutionalized in public mental institutions that do not receive Medicaid funds for their care. See 450 U.S. at 223, 101 S.Ct. at 1077. The court rejected plaintiffs’ claim that the statute improperly classified individuals on the basis of mental illness, thus triggering heightened judicial scrutiny. The court noted that

[plaintiffs] have failed to produce any evidence that the intent of Congress was to classify on the basis of mental health As in Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972), the indirect deprivation worked by this legislation upon [plaintiffs’] class, whether or not the class is considered ‘suspect,’ does not without more move us to regard it with a heightened scrutiny.

450 U.S. at 234-35, 101 S.Ct. at 1082 (citation omitted). Similarly, in the present action, plaintiff has failed to present to this court any evidence of Congressional intent to classify eligible households on the basis of whether or not a non-parent family member is disabled. Therefore, a heightened standard of review is not applicable.

CONCLUSION

It is indeed unfortunate that the lines drawn by Congress in amending the definition of household resulted in the discontinuance of benefits to a person such as Ms. Steinberg, to whom no fraudulent intent could be imputed and who resides with her parents as a consequence of her disability. However, it is not within the province of this court to substitute its judgment for that of Congress.

The court concludes that the 1981 amendment of the definition of “household” under the Food Stamp Act, 7 U.S.C. § 2012(i), and the regulations promulgated thereunder, 7 C.F.R. § 273.1(a)(3)(i) (1984) clearly have a rational basis, serve a legitimate government purpose and hence satisfy the constitutional requirements of due process and equal protection. Accordingly, defendants’ motion for summary judgment is hereby granted.

The clerk is directed to enter judgment in favor of all defendants.

SO ORDERED.


author: PROPST, District Judge.

text:
    Erminel LOVE, Plaintiff, v. ALABAMA INSTITUTE FOR DEAF AND BLIND, et al., Defendants.
    Civ. A. No. CV84-PT-1084-E.
    United States District Court, N.D. Alabama, E.D.
    Nov. 29, 1984.

      Theron Stokes, Alabama Educ. Assoc., Kenneth L. Thomas, Massey, Means & Thomas, Montgomery, Ala., for plaintiff.
    William F. Gardner and R. Michael Leonard, Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, Ala., for defendants.

      . The court notes that at least one white male with a doctorate degree was rejected.

   FINDINGS OF FACT AND CONCLUSIONS OF LAW

PROPST, District Judge.

This Title VII cause premised on allegations of sex and race discrimination came on to be heard on November 5, 1984 at a bench trial.

The parties have stipulated as to a substantial portion of the facts. (See Px-13). The court finds but will not reiterate those facts. Several of the alleged facts in said exhibit were disputed. The court makes the following findings of fact with respect to said disputed matters.

II.2. Plaintiff does not hold an AA degree in Education and Administration. Plaintiff has not been formally rated during her employment, thus it is not a fact that “At all times during her employment, plaintiff’s work performance has been rated as outstanding.”

14. The screening committee members were directed/requested to rank or prioritize the applicants/candidates. See findings on record by court at conclusion of trial and discussion by court during the trial.

19. There was no evidence that the defendant has ever employed any black or female principals. Defendant has employed both black persons and females in non-school administrative positions.

The court supplements said findings as follows:

8. The 20 applicants included 16 white males, one black female, one oriental female, and two white females.

11. The final six included five white males and plaintiff.

14. The screening committee members were not specifically told that numerical weights would be given to their rankings. The court deems this to be insignificant in view of the fact that the rankings must have been reasonably expected to be weighted in some fashion.

18. Wade was extremely well qualified for the position as is evidenced by the testimony and the exhibit summarizing his experience. Although it is not necessary for the court to do so, it finds from a preponderance of the evidence that Wade was better qualified for the position than plaintiff. (See later discussion).

The court finds and concludes that plaintiff established a prima facie case of racial and sexual discrimination. She did this by proving that she belongs to protected classes (black and female); that she applied for a job for which the defendants acknowledged she was at least minimally qualified; that she was rejected; and that defendants hired an applicant (white male) with qualifications similar to those of plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

The defendant produced substantial evidence that Philip Wade was preferred to plaintiff and given the sought position because he was determined to be the most qualified of the 20 applicants for the position and that this decision was made by a selection committee established for that purpose. Thus the burden remains with the plaintiff to persuade the court that she has been the victim of intentional discrimination. She may accomplish this directly by persuading the court that discriminatory reason(s) more likely motivated the defendants) or indirectly by showing that the defendants’ proffered explanation is incredible. Burdine, supra.

Plaintiff argues that the following alleged evidence creates inferences which should persuade the court that the defendants’ profféred reason(s) are pretextual and that she has been the victim of intentional discrimination.

(1) That the procedures by which the choice was made are suspect; the selection committee being dominated by white males.

(2) There were no fixed or reasonably objective standards and procedures for evaluating the applicants.

(3) The defendants departed from their usual procedures in making the selection.

(4) Wade did not meet the minimum requirements for the position.

(5) No blacks or females hold administrative positions with defendants.

(6) Defendants had entered into a conciliation agreement under which they agreed to affirmatively seek and employ minority applicants in administrative positions.

The court will address these contentions, seriatim.

(1) In view of the dominant influence of white males on the selection committee and the ultimate appointment being made by a white male, the court has carefully scrutinized the selection process as if it were suspect. The court finds and concludes, however, that the process was conducted fairly and with no discriminatory animus. The two black females on the committee ranked Wade above the plaintiff. There has been no hint or suggestion that the committee went about its consideration in less than a diligent, dedicated, non-discriminatory manner. All witnesses acknowledged that they detected no motive other than to select the best qualified person. The evidence was that they approached their duties with sincerity and interest.

2. The selection committee members who testified pointed to several objective standards they considered in making the selection. These included:

(a) Wade’s experience in securing governmental grants (over $2,000,000.00 in four years).

(b) Wade’s managerial experience (supervising over 200 people in his last job) ($3,000,000.00 budget).

(c) His experience with multi-handicapped children with both sight and hearing impairments and his broader experience in being involved with lower functioning children.

(d) Experience in budgeting.

All witnesses who specifically addressed these points ranked Wade higher than plaintiff on all these points of legitimate concern. Although it is not necessary for the court to so find, the court also finds Wade to be more qualified than plaintiff in all these areas. Notwithstanding the assignment of numerical weights or ranking the applicants, Wade was named on all ten ballots; plaintiff on two. Wade was listed as number one on eight ballots; plaintiff on none. The court is satisfied that the selection committee members who testified were sensitive people concerned with a highly sensitive position. No evidence has questioned their good faith, other than by subjectively asserting that their decision was, of necessity, discriminatory. The court does not agree. The President of defendant, as he customarily does, appointed the top choice of the selection committee. The court was well impressed with the record and demeanor of the plaintiff. The court was equally impressed with the record and demeanor of all the witnesses. The court cannot substitute its judgment for that of the selection committee. If it could, it would not likely be different.

(3) The court detected no radical departure from normal selection procedures. The only exceptions were two instances of lateral transfer.

(4) Although Wade did not have a Rank 1 Certificate, plaintiff acknowledged that the President of Harvard could not obtain a Rank 1 Certificate without first taking a prescribed course in Alabama. Wade had the Mississippi equivalent (AA in Mississippi). He, like plaintiff at the time of her hiring and later promotion, was given an opportunity to complete the requirements. He is in the process of so doing. His record is certainly impressive enough to allow him this opportunity. The court does not find any lack of good faith in this’ action. See Clark v. Huntsville Board of Education, 717 F.2d 525 (11th Cir.1983).

The court is fully satisfied that the whole selection process was fairly conducted in a non-discriminatory manner. “Even if defendants incorrectly believed that [Wade need not have a Rank 1 Certificate], if they nonetheless based their decision on Todd’s superior qualifications and not on plaintiff’s race [or sex], they have not violated Title VII.” Clark v. Huntsville City Bd. of Education, supra at 528 and cases cited therein.

(5) The lack of blacks and females in higher positions is a cause of concern. It is not, however, decisive of the question of whether this plaintiff has been the victim of intentional discrimination. See Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (1984). The court notes that blacks and females are well represented in professional positions.

(6) No conciliation agreement was offered into evidence. There was no evidence that any such agreement precluded defendants from selecting the best qualified candidates.

There was no direct evidence of discrimination. The plaintiff acknowledged that she has generally been treated with due respect and that her relationship with all has been good. Plaintiff apparently attempts to raise an inference of discriminatory animus from Dr. Patterson’s statement that plaintiff’s interpersonal relationships were questionable and that her attitudes are too rigid. Under the circumstances of the sensitive nature of the job, this is a valid concern. Defendants’ employees must deal continuously with severely handicapped children, their justifiably distressed parents, and fellow employees who justifiably feel the stress of the situation.

The court ultimately finds and concludes that the defendants acted in good faith in determining that Wade was the best qualified applicant. Further, that the court is not satisfied by a preponderance of the evidence that defendants’ articulation that it hired Wade because he was better qualified is incredible. Further, that the court does not find that discriminatory reason(s) more likely motivated defendants. The court ultimately finds and concludes that plaintiff was not the victim of intentional discrimination.

      . Although they now deny that they intentionally "ranked" any applicants, Wade was listed No. 1 on each ballot. The court is satisfied that these witnesses’ initial correct disavowal of knowledge that the rankings would be assigned numerical weights has resulted in an ultimate denial of the whole ranking process. The court is not satisfied that they were not aware that they were ranking at the time. The ballots were initially presumed to be "secret.”

      . It is not necessary that the court determine what weight, if any, to give to the testimony of some witnesses that plaintiff is rigid in the positions she takes. Plaintiff admitted that she tends to be blunt.

      . Applicants were generally given three years to obtain the appropriate certificate.

      . This conclusion is supported by an EEOC finding and a finding of the Office of Civil Rights, Department of Education. Both of these findings are entitled to some weight. See Smith v. Universal Services, Inc., 454 F.2d 154, 157 (5th Cir.1972).


author: PECKHAM, Chief Judge.

text:
    Efthimios A. KARAHALIOS, Plaintiff, v. DEFENSE LANGUAGE INSTITUTE FOREIGN LANGUAGE CENTER PRESIDIO OF MONTEREY; and Local 1263, National Federation of Federal Employees, Defendants.
    No. C-81-2745 RFP.
    United States District Court, N.D. California.
    Dec. 31, 1984.

      Thomas R. Duffy, Richard DeStefano, Duffy & Milgrom, Monterey, Cal., for plaintiff.
    William T. McGivern, Asst. U.S. Atty., San Francisco, Cal., Hermes Fernandez, U.S. Dept, of Justice, Washington, D.C., for defendant Defense Language Institute.
    Saul M. Weingarten, Saul M. Weingarten, Inc., Seaside, Cal., Patrick J. Riley, Nat. Federation of Federal Employees, Washington, D.C., for defendant Local 1263, Nat. Federation of Federal Employees.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

PECKHAM, Chief Judge.

1. INTRODUCTION

The plaintiff in this case, Efthimios Karahalios, has for many years been a teacher at the Defense Language Institute (hereinafter “DLI”) in Monterey, California. Like the other teachers at DLI, he is within a bargaining unit for which Local 1263 of the National Federation of Federal Employees (hereinafter “the Union”) is the exclusive bargaining representative. He is not a Union member, however, and he is not satisfied with the representation he has received from the Union. Specifically, he brought this lawsuit against the Union in 1981, alleging that the Union had mishandled grievances relating to his employment status at DLI, and had thereby breached the duty of fair representation that it owed to him.

He also named DLI as a defendant in his suit, asserting that DLI had refused to arbitrate a grievance he had filed. He maintained that such action constituted a breach of DLI’s obligations under its collective bargaining agreements and a violation of his rights to due process and equal protection of the law. The court disagreed with those claims, however, dismissing the equal protection claim and granting summary judgment on the remaining claims against DLL

But the court declined to grant summary judgment for the Union on plaintiff’s claim against it. Thus, that claim proceeded to trial before the court on June 20, 1984. The trial lasted two days, and, at its conclusion, the court took the case under submission for consideration and decision. Having since carefully reviewed the evidence presented and the relevant case law, the court now enters its findings of fact and conclusions of law as set forth below.

II. FINDINGS OF FACT

This dispute arose in 1976, when DLI opened a course developer position in its Greek Department. Two instructors in the Greek Department at DLI sought that position: plaintiff and a man named Simon Kuntelos. For both men, the possibility of being promoted from instructor (pay grade GS-9) to course developer (pay grade GS-11) represented a chance for a substantial increase in pay and prestige.

Both plaintiff and Mr. Kuntelos were well-qualified for the course developer position. Plaintiff had never held the title of course developer, but he had performed course development duties during his long tenure at DLI, and his work had been highly praised. Mr. Kuntelos, in contrast, had previously served as a course developer for DLI for a number of years. He had, however, been demoted to instructor in 1971 when DLI instituted an organizational change eliminating his course developer position.

Upon learning in 1976 that DLI had reopened the Greek Department course developer position, Mr. Kuntelos believed that he was entitled to noncompetitive consideration for that post. DLI did accord him such consideration, but decided not to award him a noncompetitive promotion. It therefore informed Mr. Kuntelos that he could obtain further consideration for the job only by going through DLLs competitive selection procedures, which included a written essay test. Mr. Kuntelos responded to DLLs decision by refusing to participate in the competitive selection procedures. Consequently, DLI gave him no additional consideration in the hiring process, and, early in 1977, it awarded the course developer position to the only person who went through the competitive selection process: Mr. Karahalios.

Although Mr. Kuntelos did not attempt to secure the course developer position through participation in the competitive selection process, he did file a grievance against DLI regarding his nonpromotion. In that grievance, he alleged that DLI had not given him proper noncompetitive consideration.

The Union represented Mr. Kuntelos through the first three stages of DLLs grievance procedure, but was unsuccessful in persuading DLI that Mr. Kuntelos’ grievance was meritorious. The next and final step in the grievance procedure was arbitration, a step that could be taken only upon approval of the Union.

To Mr. Kuntelos’ satisfaction, the Union decided to request arbitration of his grievance. In making that decision, however, the Union did not seriously consider the relative qualifications of Mr. Kuntelos and Mr. Karahalios, or the effect that arbitration might have on Mr. Karahalios’ employment status. It neither consulted Mr. Karahalios regarding his course developer qualifications, nor determined his qualifications through an examination of his personnel file. Indeed, it did not even inform Mr. Karahalios that Mr. Kuntelos had filed a grievance.

Mr. Kuntelos’ grievance went to arbitration before Alvin J. Goldman on June 22, 1977. The Union did not notify plaintiff of the arbitration hearing, and plaintiff did not learn of the hearing until well after it was over. Thus, plaintiff had no opportunity to present his views to the arbitrator.

Arbitrator Goldman rendered his decision on August 4, 1977. He ruled in favor of Mr. Kuntelos, finding that Mr. Kuntelos had not received proper noncompetitive consideration. To remedy that error, he ordered DLI to reconstitute the course developer selection process in accordance with certain guidelines.

Thereafter, DLI gave Mr. Kuntelos another opportunity to take the written essay test that plaintiff had taken. Prior to administering the test, DLI informed Mr. Kuntelos that it would refer him to the selecting official as a repromotion eligible if he obtained a score of 85 or better.

Although the essay test that Mr. Kuntelos took was the same in content as the one that Mr. Karahalios had taken, DLI’s testing procedure was different. Whereas Mr. Karahalios had only been given two hours to complete the test, Mr. Kuntelos was given a full three-and-one-half hours. Further, the tests of the two competitors were graded almost a year apart, and, because each man took the test at a time when no others were taking it, the graders were aware of whose exam they were grading. Most significantly, however, Mr. Karahalios was not afforded an opportunity to take the exam at the same time and under the same conditions as Mr. Kuntelos.

The graders gave Mr. Kuntelos a score of 83, and Mr. Karahalios a score of 81. Thus, DLI did not refer Mr. Kuntelos to the selecting official as a repromotion. Instead, it referred both Mr. Kuntelos and Mr. Karahalios for competitive evaluation.

The selecting official, Alex Szaszy, considered both candidates and chose Mr. Kuntelos. Accordingly, even though plaintiff had performed satisfactorily in the course developer position for approximately one year, DLI demoted him to the rank of instructor effective May 7, 1978.

Plaintiff then filed two grievances against DLI, one in May of 1978 and one in October of that year. His grievances were lengthy, detailed, and based on numerous grounds. See Plaintiff’s Exhibits 6 & 7. But one of his major arguments was that DLI should invalidate his demotion because it had used improper testing procedures in selecting Mr. Kuntelos.

Mario Iglesias acted as union representative for plaintiff during the first three stages of the grievance process. Mr. Iglesias believed that plaintiff’s grievances were meritorious, yet he was unable to convince DLI of that. On December 20, 1978, DLI completed the third stage of the grievance procedure by denying both of plaintiff's grievances.

Plaintiff then asked the Union to take his grievances to arbitration, and the Union officials met to consider his request. The minutes of that meeting have disappeared, so the details of what transpired are not entirely clear. It is undisputed, however, that the Union rejected plaintiff’s request.

From the testimony at trial, it further appears that the Union did not base its decision on a discussion of the merits of plaintiff’s grievances. Rather, it seems to have relied solely on a letter from its counsel advising that arbitrating on plaintiff’s behalf would constitute an untenable conflict of interest due to the earlier arbitration for Mr. Kuntelos. Admittedly, the testimony on this point was hardly unambiguous. But the court is confidant that Mr. Iglesias was correct in his assertion that the meeting did not include a discussion of plaintiff’s complaints about the testing procedures. The court is also convinced that Mr. Iglesias was not asked to, and consequently did not, describe or comment on the merits of plaintiff’s grievances at the meeting. Given the centrality of the testing procedures to plaintiff’s grievances, as well as Mr. Iglesias’ familiarity with the grievances through his role as plaintiff’s representative in the grievance process, those omissions strongly suggest that the Union did not consider the merits of plaintiff’s grievances at its meeting. The court therefore finds that the Union’s decision regarding arbitration of plaintiff’s grievances was grounded on reasons unrelated to the merits of plaintiff’s claims.

After plaintiff discovered that the Union would not take his grievances to arbitration, he attempted to obtain an arbitration without the assistance of the Union. But DLI refused to arbitrate, maintaining that it was only compelled to arbitrate upon receiving a request from the Union.

Plaintiff then sought relief against DLI and the Union from the Federal Labor Relations Authority (hereinafter “FLRA”). He charged that DLI had breached its contract obligations when it failed to arbitrate with him, and the Union had breached its duty of fair representation when it refused to request arbitration of his grievances.

The Regional Director of the FLRA disagreed with both of plaintiff’s charges. Plaintiff appealed that decision to the General Counsel, however, and the General Counsel overturned the Regional Director’s ruling on the charge against the Union. The General Counsel specifically held that the Union had denied arbitration for reasons unrelated to the merits of plaintiff’s grievances, and had thus breached its obligation to represent plaintiff fairly. The General Counsel further ordered the case remanded to the Regional Director for issuance of a complaint, absent settlement.

The remand did not result in relief for plaintiff, however. Rather, the Union entered into a settlement agreement with the FLRA, which simply provided that the Union would post the following notice:

WE HEREBY NOTIFY OUR MEMBERS THAT:
WE WILL NOT inform employees that where two or more employees are seeking one position, the Union, the National Federation of Federal Employees, Local 1263, cannot represent all such employees in the contractual grievance procedure.
WE WILL NOT inform employees that it would be a conflict of interest for the Union, the National Federation of Federal Employees, Local 1263, to represent all such employees.
WE WILL NOT in any like or related manner interfere with, restrain or coerce any employees in the exercise of their rights under the Statute.

Plaintiff protested against the settlement, but was unsuccessful in doing so.

Plaintiff then resorted to filing the instant lawsuit. Even before he brought the suit, however, DLI had abolished the Greek Department course developer position due to a lack of funding. Moreover, both plaintiff and Mr. Kuntelos are now close to retirement age. Thus, in applying the law to plaintiff’s claim against the Union, the court has been mindful that it would be impossible to effectively reconstitute the course developer selection process a second time.

III. CONCLUSIONS OF LAW

“It is well established that ... the exclusive bargaining representative of the employees in [a] bargaining unit ... ha[s] a statutory duty fairly to represent all of those employees____” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967). Plaintiff argues that the Union breached its duty to him by: (1) failing to consider his perspective when deciding to arbitrate Mr. Kuntelos’ grievance, (2) neglecting to notify him of the Kuntelos arbitration and provide him with an opportunity to be heard at that arbitration, and (3) denying arbitration of his grievances. He seeks damages consisting of lost back pay and lost retirement pay benefits, as well as attorney’s fees and costs for the instant suit and the suit before the FLRA.

A. Breach of the Duty of Fair Representation

1. The decision to arbitrate Mr. Kuntelos’ grievance.

When a union becomes the exclusive bargaining agent for a bargaining unit, employees within that unit lose the power to bargain individually with their employer. The purpose of the duty of fair representation is to protect such employees from union abuses. The duty stands “as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca, 386 U.S. at 182, 87 S.Ct. at 912.

“A breach of the statutory duty of fair representation occurs ... when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id. at 190, 87 S.Ct. at 916; see also Gregg v. Chauffeurs, Teamsters & Helpers Union Local 150, 699 F.2d 1015, 1016 (9th Cir.1983); Robesky v. Quantas Empire Airways Limited, 573 F.2d 1082, 1086 (9th Cir.1978). Arbitrary conduct is sufficient to constitute a violation; a bad faith motive or intent to hostilely discriminate is not required. Robesky, 573 F.2d at 1086. “To comply with its duty, a union must conduct some minimal investigation of grievances brought to its attention.” Tenorio v. N.L.R.B., 680 F.2d 598, 601 (9th Cir.1982). “The thoroughness with which unions must investigate grievances in order to satisfy their duty varies with the circumstances of each case.” Id.

It is clear, however, that a union’s decision on whether to prosecute an employee’s grievance must be “inclusive of a fair and impartial consideration of the interests of all employees.” Tedford v. Peabody Coal Co., 533 F.2d 952, 957 (5th Cir.1976) (emphasis added); see also Smith v. Hussmann Refrigerator Co., 619 F.2d 1229, 1236 (8th Cir.) (en banc), cert. denied, 449 U.S. 839, 101 S.Ct. 116, 66 L.Ed.2d 46 (1980). The union must consider “not only the interests of [the grievant] but also those of the ... employees who would suffer” should the union successfully take the grievance to arbitration. Tedford, 533 F.2d at 959; see also Tenorio, 680 F.2d at 602.

Thus, when the handling of a grievance deeply implicates the interests of more than one employee, the union should investigate and assess each affected employee’s side of the dispute. See generally Tenorio, 680 F.2d at 601-03; Smith, 619 F.2d at 1237-41; Automotive, Petroleum & Allied Industries Employees Union, Local 618 v. Gelco Corp., 584 F.Supp. 514, 515 (E.D.Mo.1984). For example, when two employees are competing for a position and the union is deciding which employee’s position to support, the union must consider the relative qualifications of the employees. See Gelco, 584 F.Supp. at 516. In so doing, it may be necessary to inquire of the competitors “about their experience or other qualifications.” Smith, 619 F.2d at 1240. Failing to take that step may represent a violation of the union’s duty of fair representation. Id.

Those principles apply to the instant case. The Union’s decision to arbitrate on behalf of Mr. Kuntelos had a severe effect on plaintiff, in that it ultimately led to plaintiffs demotion. Yet the Union made no effort to investigate plaintiffs views or qualifications prior to making its decision. Further, the Union showed no concern whatsoever for the consequences that arbitration of Mr. Kuntelos’ grievance might have for plaintiff. By demonstrating that level of indifference towards an individual whose interests it was supposed to protect, the Union breached its duty to represent plaintiff fairly.

2.' Failure to notify plaintiff of the arbitration.

The duty of fair representation not only dictates that unions must adequately investigate employee grievances, but also demands that unions shall, under certain circumstances, impart information to an employee or employees. In particular, a union may breach its duty by failing to convey to an employee critical facts about a grievance affecting the employee. See Robesky, 573 F.2d at 1088-91. The union need not withhold such information deliberately to violate its duty; it is sufficient if the union’s failure to inform the employee is unintentional but “so egregious, so far short of minimum standards of fairness to the employee and so unrelated to legitimate union interests as to be arbitrary.” Id. at 1090.

Courts have applied that standard to situations in which a union has unintentionally failed to notify an employee of the arbitration of another person’s grievance. See, e.g., Smith, 619 F.2d at 1241-43; Bond v. Local Union 823, Internat’l Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 521 F.2d 5 at 9 (8th Cir.1975). The thrust of those cases is that such conduct is arbitrary and illegal if the arbitration could substantially affect the employee’s interests, and the employee’s position is not adequately presented to the arbitrator. See Smith, 619 F.2d at 1241.

Those requirements are met in the instant case. It is indisputable that the arbitration of Mr. Kuntelos’ grievance substantially and detrimentally affected plaintiff. Further, there was no testimony at trial demonstrating that plaintiff’s position had been adequately presented to Arbitrator Goldman. Accordingly, the Union’s failure to notify plaintiff of the arbitration was a second breach of the Union’s duty to represent plaintiff fairly.

3. The refusal to take plaintiffs grievances to arbitration.

Plaintiff contends that the Union committed a final breach of its duty when it refused to take his grievances to arbitration. The Union has defended against that claim, however, by asserting that plaintiff had no absolute right to have his grievance arbitrated.

The Union’s statement of the law is undeniably correct: “A union is not required to take every grievance of its members to arbitration.” Gregg, 699 F.2d at 1016; see also Vaca, 386 U.S. at 191, 87 S.Ct. at 917. But the Union’s defense is incomplete. Although unions need not request arbitration of every employee grievance, their ability to deny arbitration is not unconstrained. Rather, a union’s rejection of an arbitration request must be based on “an informed, reasoned judgment regarding the merits of the clai[m] in terms of the language of the collective bargaining agreement.” Smith, 619 F.2d at 1237 (emphasis added); see also Gelco, 584 F.Supp. at 515; Dutrisac v. Caterpillar Tractor Co., 511 F.Supp. 719, 726 (N.D.Cal.1981).

No such judgment was made in the instant case. Instead, the Union refused plaintiff’s arbitration request for reasons unrelated to the merits of plaintiff’s grievances. It thereby breached its duty of fair representation for a third time.

It makes no difference that the Union relied on the advice of its attorney in making its decision to reject plaintiff’s request. “Reliance on an attorney’s advice [does not] insulate [a] union from liability for ... breach of its duty to represent its members fairly.” Gregg, 699 F.2d at 1017. The Union is therefore accountable for its unfair treatment of Mr. Karahalios, regardless of its reliance on the advice of counsel.

B. The Remedy for the Union’s Breaches

Having concluded that the Union failed to fulfill its duty to plaintiff, the court must now determine the proper remedy for the Union’s misconduct. “The appropriate remedy for ... breach of a union’s duty of fair representation must vary with the circumstances of the particular breach.” Vaca, 386 U.S. at 195, 87 S.Ct. at 919. Plaintiff has claimed several different elements of damages, which the court analyzes separately below.

1. Lost back pay and retirement pay benefits.

The first element of damages plaintiff claims is lost back pay and retirement pay benefits. In deciding whether plaintiff is entitled to recover such damages, it is significant that a union guilty of breaching its duty of fair representation may be held liable only for damages clearly attributable to its improper actions. Anderson v. United Paperworkers Internat’l Union, AFL-CIO, 641 F.2d 574, 580 (8th Cir.1981); Self v. Drivers, Chauffeurs, Warehousemen & Helpers Local Union No. 61, 620 F.2d. 439, 444 (4th Cir.1980); Soto Segarra v. Sea-Land Service, Inc., 581 F.2d 291, 298 (1st Cir.1978). Unions may not be held liable for damage awards based on speculation or conjecture. See, e.g., Bloom v. Internat’l Brotherhood of Teamsters Local 468, 752 F.2d 1312, 1313 (9th Cir.1984); United Steelworkers of America, AFL-CIO-CLC v. N.L.R.B., 692 F.2d 1052, 1057 (7th Cir.1982); DeBoles v. Trans World Airlines, Inc., 552 F.2d 1005, 1017-20 (3d Cir.1977).

For example, in Self the Fourth Circuit overturned a district court’s order requiring a union to compensate an employee for lost back pay and benefits. 620 F.2d at 443-44. The Court of Appeals explained that the district court’s award could not stand because it “rest[ed] on mere conjecture — on the assumption that plaintiffs might not have been discharged, or might have been reinstated but for the Union’s improper action or inaction.” Id. at 443 (emphasis in original).

Similarly, in Anderson the Eighth Circuit disallowed a severance pay award against a union that had made misrepresentations to the employees it was supposed to represent. 641 F.2d at 578-81. The court reasoned that “[t]he plaintiffs have not proved that but for [the union’s] misrepresentations ... they would have obtained their severance pay.” Id. at 580.

The Ninth Circuit’s recent decision in Bloom provides an additional illustration. In that case, a union made a false promise to its members in connection with the settlement of a labor dispute involving Safeway Stores. The district court held that the union had thereby breached its duty of fair representation and was thus liable for damages “in a measure of the difference between the settlement the union’s members actually obtained from Safeway and the settlement they might have obtained by bargaining further instead of believing the union’s false promise____” 752 F.2d at 1313 (9th Cir.1984). But the Ninth Circuit overturned the damage award, explaining that “the record did not support the speculative assumption that Safeway would have increased its monetary settlement to the members by $4,000 per person.” Id.

The circumstances of Self, Anderson, and Bloom are not unlike the ones in the instant case. As in those cases, the court is convinced that the union violated its duty to plaintiff. But, like the courts in Self, Anderson, and Bloom, the court is unable to say with a reasonable degree of assurance that but for the Union’s improper treatment plaintiff would have obtained the pay and benefits he claims. The qualifications of plaintiff and Mr. Kuntelos were simply too evenly matched for the court to find that plaintiff had a clear edge over Mr. Kuntelos. Thus, the court would merely be speculating if it ruled that plaintiff would have retained the course developer job and earned additional pay and benefits had the Union considered his qualifications in connection with Mr. Kuntelos’ arbitration request, allowed him to present his views to Arbitrator Goldman, and assessed the merits of his grievances in ruling on his own arbitration request. Further, at this late date, the court cannot eliminate the need for such speculation by reconstituting the course developer selection process a second time. See p. 445, supra. Accordingly, the court has reluctantly concluded that it must deny plaintiff’s request for lost back pay and retirement pay benefits.

2. Attorney’s fees and costs.

In addition to seeking compensation for lost back pay and retirement pay benefits, plaintiff seeks an award of the attorney’s fees and costs he incurred in litigating his claims. That request must be considered as two separate requests: one for the attorney’s fees and costs he incurred in his litigation against DLI, and one for the attorney’s fees and costs he incurred in his suits against the Union.

There is solid support for the former request in the case law. Many courts have held that when a union breaches its duty of fair representation by failing to give proper consideration to an employee’s grievance, the employee is entitled to “damages from the union to cover [the] expenses, including attorney’s fees and costs, that [he] incurred in seeking a fair resolution of [his] claim against the employer.” Dutrisac, 511 F.Supp. at 729; see also Del Casal v. Eastern Airlines, Inc., 634 F.2d 295, 301 (5th Cir.1981), cert. denied, 454 U.S. 892, 102 S.Ct. 386, 70 L.Ed.2d 206 (1981); Self, 620 F.2d at 444; Scott v. Local Union 377, Internat'l Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 548 F.2d 1244, 1245-46 (6th Cir.), cert. denied, 431 U.S. 968, 97 S.Ct. 2927, 53 L.Ed.2d 1064 (1977). Such an award is “an element of compensatory damages,” Hardesty v. Essex Group, Inc., 550 F.Supp. 752, 767 (N.D.Ind.1982); see also Scott, 548 F.2d at 1246; Foster v. Bowman Transportation Co., Inc., 562 F.Supp. 806, 818 (N.D.Ala.1983), and is proper even if it is uncertain whether the plaintiff would have prevailed in his claim against his employer, see Dutrisac, 511 F.Supp. at 729. Thus, in the case at hand, the Union is clearly liable to Mr. Karahalios for the amount that Mr. Karahalios spent litigating his claim against DLI before this court and before the FLRA.

Different considerations apply to plaintiff’s request for reimbursement of the attorney’s fees and costs he sustained in suing the Union. Plaintiff contends that such an award is necessary “to completely redress the [U]nion’s breach.” Plaintiff’s Trial Brief, filed 6/12/84, at 18.

It is clear, however, that “attorney’s fees incurred in bringing a [fair representation] action do not arise to the status of compensatory damages.” Cronin v. Sears, Roebuck & Co., 588 F.2d 616 at 619 (8th Cir.1978); see also Hardesty, 550 F.Supp. at 767. Further, the “American rule,” clearly endorsed in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), is that “attorney fees are not ordinarily recoverable by the prevailing party in federal litigation absent statutory authorization,” which does not exist for fair representation actions. Emmanuel v. Omaha Carpenters District Council, 422 F.Supp. 204, 210 (D.Neb.1976), aff'd, 560 F.2d 382 (8th Cir.1977).

Nonetheless, there is an important exception to the “American rule.” When a plaintiff’s suit confers a substantial benefit on others as well as on himself, courts may grant the plaintiff an award of attorney’s fees. Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702 (1973); see also Emmanuel, 422 F.Supp. at 210. That doctrine, termed the “common benefit rationale,” has provided a basis for attorney’s fee awards in fair representation actions in which the plaintiff “ ‘necessarily rendered a substantial service to his union as an institution and to all of its members.’ ” Harrison v. United Transportation Union, 530 F.2d 558, 564 (4th Cir.1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1739, 48 L.Ed.2d 203 (1976), quoting Hall v. Cole, 412 U.S. at 8, 93 S.Ct. at 1947; see also Emmanuel v. Omaha Carpenters District Council, 560 F.2d 382, 385 (8th Cir.1977); Bowen v. United States Postal Service, 470 F.Supp. 1127, 1132 (W.D.Va.1979), aff'd in part & rev’d in part on other grounds, 642 F.2d 79 (4th Cir.1981), rev’d on other grounds, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983).

This is an appropriate case for application of the “common benefit rationale.” As a result of plaintiff’s litigation before the FLRA, the Union agreed to post a notice advising its members of its obligations when two or more employees seek one position. Plaintiff’s litigation thus significantly advanced the interests of individual union members by helping to inform them of their rights. Further, plaintiff’s suit before this court involved novel jurisdictional issues regarding the ability of federal employees to bring fair representation actions in federal district court. The court resolved those issues in favor of plaintiff, see Karahalios v. Defense Language Institute, Etc., 534 F.Supp. 1202 (N.D.Cal.1982), so plaintiff’s suit serves as a valuable precedent for every federal employee who prosecutes a fair representation claim in federal district court. It is clear, then, that “Mr. Karahalios’ actions ... have been responsible for major changes, both nationwide and in [his] local bargaining group.” Plaintiff’s Trial Brief, filed 6/12/84, at 18. Justice therefore requires that plaintiff receive damages for the attorney's fees and costs he incurred in prosecuting this action, as well as in pressing his charges before the FLRA.

IV. CONCLUSION

It is clear to the court that the Union breached its duty to plaintiff on three separate occasions. But the court is unable to compensate plaintiff for lost back pay and retirement pay benefits, because it cannot reliably determine whether plaintiff would have retained the course developer position absent the Union’s breaches. The court has reached this conclusion with a certain sense of frustration, yet believes that the circumstances of this case leave it with no alternative course. As DLI Commandant Foster commented, plaintiff was the “innocent victim of circumstances beyond his control.” Plaintiff’s Exhibit 8.

Although the court has denied plaintiff’s request for lost back pay and retirement pay benefits, it grants his claim for reimbursement of the attorney’s fees and costs he incurred in his litigation before this court and before the FLRA. Plaintiff shall have until January 31, 1985 to file a detailed accounting of those expenses. If the Union has any objections to plaintiff’s accounting, it must submit them in written form by February 14, 1985. Once the period for filing objections has elapsed, the court will determine whether a hearing on the amount of plaintiff’s award is necessary.

SO ORDERED.

      . DLI is a federal agency that provides foreign language instruction to United States military and civilian personnel.

      . DLI and the Union were signatories to collective bargaining agreements dated May 5, 1976 and May 15, 1978.

      . Certain evidence in the record arguably suggests that the Union’s decision was based on a bad faith policy of favoring Union supporters over other bargaining unit members. Specifically, such an inference could be drawn from Mr. Kuntelos’ status as a Union official versus plaintiff's lack of Union membership, Mr. Kuntelos’ offer to donate money to the Union if he prevailed in arbitration, and the Union's history of chastising DLI for failing to promote more Union employees (see Plaintiff’s Exhibit 42). It is the court’s opinion, however, that it need not decide whether to draw that unfavorable inference.

      . The Union's president, Rogelio Castro, testified that when the Union officials met to consider arbitration of Mr. Kuntelos’ grievance, they discussed the number of years that plaintiff had worked, as well as plaintiff's failure to hold the title of course developer prior to his 1977 selection for that post. But such discussion, assuming it took place, hardly constituted a meaningful examination of plaintiff's credentials, especially because it was not based on information obtained from plaintiff or his personnel file. Moreover, Mr. Castro’s testimony before the court was, on the whole, vague and marked by inconsistencies. The court is therefore satisfied that whatever discussion of Mr. Karahalios’ qualifications occurred at the Union meeting was minimal and insignificant.

      . For the specifics of Arbitrator Goldman's award, see his opinion, which is filed as Plaintiff's Exhibit 3.

      . Despite Mr. Iglesias’ earlier conviction that plaintiffs grievances had merit, the Union’s decision was unanimous. Mr. Iglesias testified at trial that he voted against plaintiff in deference to the judgment of the Union’s counsel to the advisability of arbitration.

      . The Union could have remedied the conflict of interest problem by appointing independent counsel for plaintiff to take plaintiffs grievances to arbitration. But it did not do so, even though plaintiff and the Union’s counsel had suggested that course.

      . The court is fully aware that this finding is inconsistent with the representations made in Plaintiff’s Exhibit 9, a letter to plaintiff in which the Union’s president, Mr. Castro, stated that the Union’s decision was based in part on an assessment of the merits of plaintiff’s grievances.

      . Moreover, the Union's course of action was not wholly consistent with the advice of its attorney, Saul Weingarten. Although Mr. Weingarten had suggested that the Union appoint independent counsel to take plaintiff's grievance to arbitration, the Union did not follow that course.

      . The Fifth Circuit took a different approach in Abilene Sheet Metal, Inc. v. N.L.R.B., 619 F.2d 332, 348 (5th Cir.1980). In that case, an employee had filed a grievance, which his union had mishandled in a manner that made it impossible to subsequently determine the merit of his grievance.
      The majority of courts would have disallowed the employee's recovery due to the uncertainty in the merit of his grievance. But the Fifth Circuit ruled instead that "the uncertainty [should be resolved] against the party that created it by an unlawful act." Id.

      The Fifth Circuit’s principle of resolving uncertainty against the wrongdoer has a certain appeal. Yet this court is also sensitive to the argument that "[s]pecial caution against excessive awards is counseled in the labor law context where a carefully conceived and administered balance between the rights, powers and duties of union, management and individual employee has been established by Congress on a national scale.” Soto Segarra v. Sea Land Service, Inc., 581 F.2d 291, 298 (1st Cir.1978). More fundamentally, however, this court need not thoroughly analyze the wisdom of the Fifth Circuit's approach, because the Ninth Circuit has rejected that approach, see Bloom, 752 F.2d 1312, 1313 (9th Cir.1984), and this court must follow the lead of the Ninth Circuit, see Hasbrouck v. Texaco, Inc., 663 F.2d 930, 933 (9th Cir.), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982).

      . In drawing the conclusion that plaintiffs qualifications were not clearly superior to those of Mr. Kuntelos, the court has not overlooked the testimony of plaintiff’s son, Athas Karahalios, regarding reanalysis of the written essay test that plaintiff and Mr. Kuntelos took. Athas testified that DLI had scored the test using the scoring guidelines set forth in the February 3, 1977 amendments to a government manual dated July 1, 1976. He further asserted that Arbitrator Goldman had mandated use of other guidelines: the ones in the government manual itself, not those in the February 3, 1977 amendments to that manual. According to Athas, if DLI had used the guidelines in the government manual, Mr. Kuntelos would have received an 83, plaintiff would have received an 85, and DLI would have referred plaintiff to the selecting official as a repromotion, thus ensuring plaintiff's reselection.
      There are at least three problems with Athas’ argument. First, and most importantly, the argument presupposes that plaintiff’s test and Mr. Kuntelos' test can be meaningfully compared. Athas apparently would have this court assume that if any distortion of the results occurred due to the gap in testing dates, the difference in testing periods, and the lack of anonimity in grading, the distortion worked to plaintiff's disadvantage. The court cannot do that, however, because making such an assumption would amount to impermissible speculation.
      A further weakness in Athas' analysis is its dependence on the theory that Arbitrator Goldman intended to have DLI ignore the amendments to the July 1, 1976 manual. Arbitrator Goldman’s opinion is by no means explicit on that point, and this court is not certain that Athas’ interpretation is consistent with the arbitrator’s intent.
      Finally, Athas’ argument rests on the premise that plaintiff would have been selected if DLI had referred plaintiff to the selecting official as a repromotion. While such a result seems likely, the court is aware of no evidence suggesting that the selecting official would have been compelled to hire plaintiff if plaintiff had been referred as a repromotion. Indeed, from Arbitrator Goldman’s opinion, it appears that the selecting official would have been free to reject any candidate referred as a repromotion, so long as the selecting official stated his reasons for doing so. Thus, the court would not be justified in using Athas’ reasoning as a basis for awarding lost back pay and retirement pay benefits to plaintiff.