author: BRIEANT, District Judge.

text:
    Michael ROMAN, Petitioner, v. Robert ABRAMS, Attorney General of the State of New York, Respondent.
    No. 85 Civ. 0763-CLB.
    United States District Court, S.D. New York.
    May 15, 1985.

      Lawrence Mark Stern, Dominick J. Porco, New York City, for petitioner.
    Allen Saperstein, Robert Shepherd, Asst. Dist. Attys., New York City, for the Bronx on behalf of respondent.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

On December 4th of last year, breaking with long standing precedent, the Second Circuit, in McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), rehearing en banc den., 756. F.2d 277 (2d Cir.1985), petition for cert. filed, 756 F.2d 277, “spell[ed] the end of the peremptory challenge as an effective jury selection tool,” in state criminal trials (Meskill, J., dissenting). The Court held that: “[T]he Sixth Amendment’s guarantee of trial by an impartial jury ... forbids the exercise of [peremptory] challenges to excuse jurors solely on the basis of their racial affiliation.” 750 F.2d at 1131. It also turned the jury selection process into a possibility of twenty mini-trials within a Class A felony trial in New York, as the court determines whether the prosecutor’s “reasons” for exercising peremptories are “genuine” or merely “pretextual”. Id. at 1132. Defendants, because their exercise of peremptory challenges are not “state action,” and because a “reason” to challenge a juror which originates with the client will be a privileged communication, will be subject to no such mini-trial. The inequality produced thereby must lead to abolition or severe reduction of peremptories. We discuss McCray and its predecessors more fully infra p. 635. In the meantime, we consider how the rule of McCray is to be applied to this white petitioner.

Petitioner Michael Roman, a white person, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Roman challenges his conviction in the New York State Supreme Court, Bronx County first, on the ground that he was deprived of his Sixth Amendment right to a trial before a fair and impartial jury comprised of a cross-section of the community, due to the prosecutor’s use of his peremptory challenges to exclude white venirepersons solely because of their race. He also makes the customary assertion that he was denied his Sixth Amendment right to effective assistance of counsel. This latter contention need not detain us; counsel so maligned had the foresight to anticipate McCray almost three years before it came down.

Prior Proceedings

On December 18, 1981, petitioner was convicted by a jury in Supreme Court, Bronx County, along with his co-defendant, Harold Schreiber, of conspiracy in the fourth degree, arising out of an arson-for-hire agreement. Petitioner appealed his conviction and on December 8, 1984, the Appellate Division, First Department, affirmed without opinion. See People v. Roman, 106 A.D.2d 261, 484 N.Y.S.2d 389 (1st Dept., Dec. 6, 1984). Petitioner then sought leave to appeal to the Court of Appeals of the State of New York. That application was denied on January 28,1985. In his state appeals, petitioner raised the contentions presented here. See Ex. 1 to Answering Affidavit of Allen H. Saperstein (sworn to February, 1985). Since these federal claims were both fairly presented to the state courts, defendant has exhausted his state court remedies as required by 28 U.S.C. § 2254. See Daye v. Attorney General of State of New York, 696 F.2d 186, 192-94 (2d Cir.1982). Having exhausted his appeals at the state level, petitioner filed his petition in this Court on January 29, 1985, proceeding by order to show cause. The execution of petitioner’s judgment of conviction was stayed pending consideration of the petition, he was enlarged or continued on his existing state bail, and an evidentiary hearing was held before me on the jury selection claim. Decision was reserved. Set forth below are the findings of fact and conclusions of law of this Court following its evidentiary hearing.

The Trial

The prosecution’s chief witness was one Ernest Brooks, a Black man with a criminal record. Mr. Brooks had been arrested on July 3, 1980 on a charge of burglary. He negotiated with the prosecutor in exchange for leniency on his burglary charge, to furnish information concerning his participation in an ongoing conspiracy to blow up a building in the Bronx. According to Mr. Brooks, the explosion was to take place the following day at the Hunts Point Taxi Exchange, a building owned by Harold Schreiber at which petitioner was employed.

On July 4, 1980, and on three other occasions in July, Brooks, acting as an undercover equipped with a tape recorder, engaged petitioner Michael Roman in several conversations. Brooks testified at length at trial, both on direct and cross-examination, as to his activities and concerning the context in which the taped conversations had taken place. During the trial, only one and part of another of the taped conversations were introduced by the prosecution for consideration by the jury. Although many of the words on tape are apparently unintelligible (see Ex. 4A, Tr. of July 15, 1980 tape), there are words spoken by Roman on July 15, 1980 which could support the inference that he did intend that the building be destroyed. He was heard discussing a procedure to be effected on the roof of the Taxi Exchange, to block the vents, in order that a gas explosion in the building might be enhanced.

In addition to the tape recording and Brooks’ testimony as to the details of the conspiracy, the prosecution presented other witnesses who testified as to Schreiber’s financial difficulties, (Trial Tr. at 981-83), that Schreiber had obtained recent increases in the insurance coverage for the building (Trial Tr. at 864-65, 867-70), and that the alleged scheme to blow up the building was feasible. (E.g., Trial Tr. at 837-38, 911-12, 914, 922-24, 926).

The evidence at trial, including Brooks’ testimony, was sufficient to support a conviction, notwithstanding evidence or argument submitted by the defense that talk of the conspiracy was just a “joke.” (Trial Tr. at 1146).

Violation of Petitioner’s Right to an Impartial Jury

We consider first whether petitioner was denied his right to a fair trial as guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the states since 1968 through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

During the jury selection process, both counsel for the defendants complained vociferously to the trial judge that the prosecutor was deliberately utilizing his peremptory challenges to exclude whites from the panel of proposed jurors in order to obtain a petit jury comprised of as many minority panel members as possible. Petitioner through his trial counsel claimed, and now claims, that these actions on the part of the prosecutor to exclude white jurors deprived him, as a Caucasian, of his right to a jury trial before an impartial jury comprised of a fair cross-section of the relevant community. We consider first the jury selection procedures as revealed from the trial transcript itself.

The challenges were exercised in rounds, the prosecutor acting first, all in conformity with New York Criminal Proc. Law § 270.15. Because it was a Class C felony case, each side was entitled to fifteen peremptory challenges. New York Crim. Proc.Law § 270.25.

Round 1

On August 17, 1981, a panel of twelve potential jurors was drawn at random from a panel of venirepersons and seated as follows:

Juror No. 1 Bertha Hammons

No. 2 Yvonne Bumpers

No. 3 Emma Cauldwell

No. 4 Jay Heager *

No. 5 Richard Harnz *

No. 6 Carmen Valez

No. 7 Olga Velacquez

No. 8 Tina Martinez *

No. 9 Camille Viscargllio *

No. 10 Isabelle Martin *

No. 11 Lindrina Rosario *

No. 12 Robert Theodore

(Voir Dire at 13).

After extensive questioning of the panel by both the trial court and counsel, giving rise to no challenges for cause, counsel were each given their opportunity to exercise peremptory challenges. The prosecutor challenged six persons peremptorily. They were panel members Nos. 4, 5, 8, 9, 10 and 11, indicated by an asterisk, above.

Defense counsel raised an immediate objection, pointing out clearly to the trial court that the prosecutor had exercised these six challenges so as to exclude every white juror then seated. (Voir Dire Tr. at 51-52). The prosecutor responded lamely that only four of his challenges were against white jurors, and that the other two challenged were Hispanic. (Id. at 52). Defense counsel continued this high level discourse by observing that the two Hispanics were “light-skinned.” It is clear from colloquy in the record that no white jurors remained in the box at the conclusion of the prosecutor’s peremptory challenges in Round 1. (Id.) After defense counsel, acting jointly as required by local practice, had exercised four peremptory challenges, the two remaining panel members, Yvonne Bumpers and Carmen Valez, were seated as jurors Nos. one and two. (Id. at 54). As such, each was immune from further peremptory challenges. It is clear from the context of the trial record that neither of these two jurors was white, and I so find.

Round 2

A group of ten replacements was drawn from the venire and seated in the jury box for further questioning by counsel, as follows:

Juror No. 3 Doreen Williams

No. 4 Bernard Ryan (Harry Therber) *

No. 5 Haddie Barnharm *

No. 6 Edith Hicks (John Cullan) *

No. 7 Alice Carlson

No. 8 Richard Davis

No. 9 Margaret Green

No. 10 Willie Hill

No. 11 Julius Tesler

No. 12 Marie Hines (Elice Roy)

(Voir Dire at 54-61).

After voir dire examination, the prosecutor exercised three more peremptory challenges, excluding panel members Nos. 4, 5 and 6. (Id. at 66). Two of these three persons were also white. (Id. at 67). Defense counsel both objected to this action. (Id. at 66-67). Only one white juror remained in the box after the prosecutor’s challenges in the second round.

Defense counsel then exercised three joint peremptory challenges of their own, excusing one juror who was white. Defense counsel felt compelled to state that his reason for excluding the only remaining white juror was that the person was “illiterate.” (Id. at 67-68). However, his action was not state action, and there is no evidence of bad faith on his part, assuming that it matters. Again, at the conclusion of the second round of challenges, the prosecutor had used nine of his fifteen permitted challenges, at least six of which had been used to exclude white persons from the panel. The defense had used seven of their fifteen joint challenges, only one of which was exercised against a white juror. At the end of this round, then, six jurors had been seated permanently; none of whom was white.

Round 3

The remaining six seats were then filled. After further questioning, and the dismissal of one juror for cause, the prosecutor challenged one of the six and defense counsel excused two others. It may be inferred from the lack of objection by defense counsel, and by certain unchallenged comments of the prosecutor on the record, that all three peremptory challenges on this round were lodged against black jurors. (See id. at 77,101). Apparently, of the nine individuals seated permanently as jurors at the conclusion of this round, two were white, and I so find. (Id. at 100).

Round 4

Three replacement jurors were seated. One of the three was excused on the prosecutor’s challenge for cause, and defense counsel peremptorily excused the remaining two, both of whom were black. (Id. at 85, 88).

Round 5

Three prospective jurors were again seated in the jury box. Two of these jurors were excused on consent and their seats were filled. Then, after one of the three new prospective jurors was excused for cause, defense counsel exercised their peremptory challenges against the remaining two prospective jurors, one of whom was white. This left three vacant seats. (Id. at 89-93). Only two white jurors remained seated as jurors.

Round 6

The three remaining seats were filled once again. The prosecutor challenged two of the three jurors peremptorily, both challenges being exercised against white persons. (Id. at 100). When defense counsel again pointed out to the trial court that the prosecutor was continuing to exclude white persons from the panel, the trial judge invited the prosecutor to place his reasons for exercising the two challenges on the record. (Id.). That invitation soon turned into a direct request by the court for the prosecutor to state his reasons. (Id. at 103).

Rather than comply fully with the trial court’s request, the prosecutor withdrew one of his challenges. As to the other juror, his comment was “I don’t feel she can be fair and impartial to my witnesses.” (Id.). No further reason of any kind was proffered. Defense counsel exercised no challenges. Due to the withdrawal by the prosecutor of one of his peremptory challenges on this round, three white jurors then remained on the panel.

Round 7

The last remaining seat on the jury was filled, and once again the prosecutor exercised a peremptory challenge. (Id. at 136). Defense counsel again voiced an objection. At the request of defense counsel, and after some prodding by the court, the prosecutor stated his “reason” for the challenge: “I believe based on his background.” (Id. at 138). The juror so excused was white.

Round 8

No peremptory challenges were exercised by either side in this final round, so the twelfth juror was thus sworn and selection of the regular panel was complete. Two alternate jurors were then selected and, neither being challenged, jury selection was concluded.

Discussion

Aside from challenges for cause, which we assume to have been proper for purposes of this petition, the prosecutor challenged peremptorily a total of eleven prospective jurors, eight of whom were white, two others said to be “light-skinned” Hispanic individuals, to be regarded as white for our present purposes, and one black. An additional challenge had been exercised against a white juror, but was withdrawn when the court required the prosecutor to state his reasons for the challenge. Aside from the alternates, then, the final jury panel consisted of three white persons and nine jurors who were perceived to be black or dark-skinned Hispanic.

Petitioner asserts, and I conclude in light of McCray, that the pattern of challenges exercised by the prosecutor at trial was sufficient to make out a prima facie case to the effect that the challenges had been exercised deliberately to exclude potential white jurors solely because of their race. Under McCray, this imposes a burden on the prosecutor to come forward and present “some reason other than group affiliation for the challenges.” McCray, 750 F.2d at 1133.

The state judiciary has refused to require the prosecutor to give reasons. See People v. McCray, 57 N.Y.2d 542, 547, 457 N.Y. S.2d 441, 443 N.E.2d 915 (1982). The trial court attempted unsuccessfully to get the prosecutor in this case" to do so. To the extent the prosecutor did respond at all to the trial judge, his comments were most revealing. In Round 6, as to one challenge, the admission was made by the prosecutor that he believed that the white juror could not be fair to my witnesses. (Voir Dire Tr. at p. 103). No reason for this belief was given, nor does one appear from the record. The principal witness for the prosecution was a black person who was characterized later at the federal habeas hearing by the prosecutor (Tr. at 56), as “not very bright,” who had an “extensive [criminal] record,” “plainly he was a commercial burglar” with “20 or 30” burglary arrests, and “violent enough not to have people even listen to who he is” (id. at 57). This is a plain admission by the prosecutor of an invidious, racially motivated exercise of at least one peremptory in Round 6. As to the other such peremptory exercise in that Round, rather than verbalize a reason, the prosecutor withdrew his challenge of a white juror, in the tradition of the child whose fingers had been caught in the cookie jar.

The “reasons” given at the federal habeas hearing were likewise childish and pretextual, as well as unbelievable. The prosecutor testified at the federal habeas hearing before me. I do not say that he wilfully perjured himself in 1985 with respect to his motivations and subjective thinking at the voir dire conducted in 1981. However, he in effect concedes, and I find, that due to the passage of time, he has no present recollection of what his thinking was then. His contemporaneous courtroom notes have been preserved, but he cannot now read much of his own writing, and neither can this Court. Moreover, even were we able to decipher those notes, their relevance is nil in light of the prosecutor’s testimony at the habeas hearing that he does not know now whether the various individual juror attributes listed on these partly legible notes necessarily caused him to decide to challenge or to refrain from challenging a particular juror. (Habeas Tr. at 87-89). At the federal habeas hearing, he has tried, with great effort, using the transcript of the voir dire proceedings at trial, and that portion of the courtroom notes which he can now decipher, to reconstruct his reasoning in 1981. This great effort has led to a lot of lawyer circumlocution, folklore and cant, either unbelievably trivial and incredible, or pointing most strongly to the inescapable inference that the prosecution set out to skew the jury selection process so as to remove as many white jurors as possible in direct contravention of the proscriptions set forth in McCray, supra. For example: He excused Hager (Heager), in Round 1, he now says, because he knew one of the defense counsel, but no attempt was made to challenge for cause. He now says he excused Hahn (Harnz) in Round 1 because he was employed in “electronics,” which was a “too technical background for the type of juror I wanted in this case.” (Voir Dire at 43). Such a claim has a hollow ring; this commercial arson trial involved testimony about the financial condition of Schreiber and the placement of new insurance, as bearing on motive.

The third juror challenged in Round 1 was Isabel Martin. During the course of the habeas hearing the witness stated that he could not recall his reason for challenging this white juror. (Tr. at 45). And, a fourth juror challenged by the prosecution was employed as a bookkeeper. In addition this person had a nephew who was employed as a police officer. (Id. at 45). Three years later the prosecutor states that he challenged the juror on the ground that she was a bookkeeper and would therefore have difficulty accepting the reasonable doubt standard. (Id.). For further justification of this challenge, the prosecutor volunteered that the relationship of the juror to a police officer also bore upon his decision:

“Ordinarily while a prosecutor may want someone who is connected to the police in some way, in this case due to the type of informant I had, who had a very extensive record, I felt that people who were too law and order oriented could not accept the type of complainant or informant that I was going to base my case on.” (Id. at 45-46).

Considering the fact that two jurors who were later empanelled also were relatives of police officers, I find the witness’ assertion to be intentionally misleading, and the product of selective recollection of the sort where the wish is father to the thought.

Having had the opportunity to observe this witness’ demeanor in court and finding inconsistencies throughout his testimony, not only in the above-cited instances, but in various others as well, I find that the reasons given now, three years after the fact, for exercising peremptory challenges cannot be accepted as correct and are pretextual. The prosecutor had the opportunity to give reasons for the challenges at the time of trial. Having foregone that opportunity, the inference that his challenges were racially motivated is quite strong, especially where, as here, out of eleven challenged jurors, ten are white.

More than once, at the trial and in the federal habeas corpus hearing, Roman’s prosecutor in effect conceded that at least some of his challenges were racially motivated. Verbalizing those challenges as intended to obtain jurors with whom the credibility of the prosecution’s black accomplice witness would be enhanced, as he did (Habeas Tr. 55-57), describes the doughnut without mentioning the hole that goes with the doughnut; such discriminatory selections diminish the rights of the defendant to a representative jury at the final stage of the selection process, as granted in McCray.

Based on the entire record before me I am convinced and find that the prosecutor used his peremptory challenges deliberately, insofar as possible, to effect the invidious purpose of eliminating or reducing the number or proportion of white jurors who would try Roman’s case. We now consider the impermissibility of these actions in light of McCray.

Any discussion of use by a prosecutor of peremptory challenges to exclude potential jurors from sitting on a particular petit jury, based on factors such as race, religion, national origin, membership in a “cognizable group” or other stereotype, must begin with the case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in order that the newly announced rule of McCray may be placed in a proper context.

In Swain, a black petitioner, convicted in Alabama of rape and sentenced to death after trial by a jury composed entirely of white persons, challenged his conviction because the prosecutor exercised his peremptory challenges so as to exclude the only six available black venirepersons from the petit jury. His pleadings relied on a claimed violation of the Equal Protection Clause of the Fourteenth Amendment. At the time, the Supreme Court had not yet discovered that the Sixth Amendment was applicable to the states, announced three years later in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). In Swain, the Court upheld a system of using peremptory challenges, “without cause, without explanation and without judicial scrutiny,” id,., 380 U.S. at 212-13, 85 S.Ct. at 831-32, similar to that used in McCray’s state trial and that of our petitioner. The Court accepted the contention of Alabama that its system of striking jurors, “whether they be Negroes, Catholics, accountants or those with blue eyes,” was “a suitable and necessary method of securing juries which in fact and in the opinion of the parties are fair and impartial.” Id. at 212, 85 S.Ct. at 831. The Swain Court traced the history of the peremptory challenge to English common law, where it was the “persistent ... view that a proper jury trial required peremptories on both sides,” id. at 212-13, 85 S.Ct. at 832, and noted that the practice of permitting both sides peremptory challenges continued when the courts of this nation were first formed, with both the federal and state systems sharing the view that such challenges were an effective means of obtaining a fair and impartial jury. Id. at 214-18, 85 S.Ct. at 832-34.

As stated earlier, Swain was decided in the context of a traditional Equal Protection challenge. Even in the face of such a constitutional challenge, the Swain Court recognized the overriding importance of the peremptory challenge in all criminal cases:

“The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. [Citation omitted]. Although ‘[t]here is nothing in the Constitution of the United States which requires the Congress [or the States] to grant peremptory challenges,’ Stilson v. United States, 250 U.S. 583, 586 [40 S.Ct. 28, 30, 63 L.Ed. 1154 (1919)], nonetheless the challenge is ‘one of the most important of the rights secured to the accused,’ Pointer v. United States, 151 U.S. 396, 408 [14 S.Ct. 410, 414, 38 L.Ed. 208 (1894) ]. The denial or impairment of the right is reversible error without a showing of prejudice. [Citations omitted]. ‘For it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.’ [Citations omitted].” 280 U.S. at 219, 85 S.Ct. at 835.

The importance of the right to exercise peremptory challenges, was not limited to the defendant:

“The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise. In this way the peremptory satisfies the rule that ‘to perform its high function in the best way ‘justice must satisfy the appearance of justice’.’ In re Murchison, 349 U.S. 133, 136 [75 S.Ct. 623, 625, 99 L.Ed. 942 (1955)]. Indeed, the very availability of peremptories allows counsel to ascertain the possibility of bias through probing questions on the voir dire and facilitates the exercise of challenges for cause by removing the fear of incurring a juror’s hostility through examination and challenge for cause. Although historically the incidence of the prosecutor’s challenge has differed from that of the accused, the view in this country has been that the system should guarantee ‘not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.’ Hayes v. Missouri, 120 U.S. 68, 70 [7 S.Ct. 350, 351, 30 L.Ed. 578 (1887)].” 380 U.S. at 219-20, 85 S.Ct. at 835.

This recognition of the right of both the defendant and the prosecutor to exercise the challenge of a limited number of venirepersons without cause was the first step in the Swain Court’s rejection of the Equal Protection argument. The second step was to recognize that in the circumstances of any particular case, the reasons for the exercise of such challenges need not be given:

“The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control. [Citations omitted]. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. [Citation omitted]. It is often exercised upon the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another’ [citations omitted]____ It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. [Footnote omitted]. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be. [Footnotes and citations omitted]. Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.” 380 U.S. at 220-21, 85 S.Ct. at 836.
* * * * * Sic
“The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.” 380 U.S. at 222, 85 S.Ct. at 837.

In concluding, the Swain Court reiterated that no jury in a single case was required by the Constitution to be stricken merely because of the possible use by the prosecutor of his challenges to exclude persons of a particular race. Instead, the presumption that the challenges were based on case-related reasons is overcome only by a showing that “the prosecutor’s use of peremptory challenges [occurred] over a period of time.” Id. at 227, 85 S.Ct. at 839. The McCray court concluded that to demonstrate this was “mission impossible,” (subheadnote at 1120).

The Swain Court made it quite clear that nothing in the Constitution required a prosecutor to disclose reasons for his peremptory strikes. After Duncan, in 1968 applied the Sixth Amendment to the states, a long line of authority developed to the effect that Swain is applicable even in a Sixth Amendment context.

No rational person can defend deliberate exclusion of a cognizable group from such an important public duty as that of administering the criminal law. All can agree that a prosecutor so abusing peremptory challenges is at the very least infra dig. and arguably unfair. However, the whole idea of a peremptory challenge is at odds with the necessity to give reasons. The transactional costs involved in litigating whether the reasons are “pretextual” will be vast and the reliability of the results uncertain. In the American tradition of the adversary system of justice it is foreseeable that on occasion the prosecutor will abuse his peremptories, and even more often, the defense will challenge the challenges.

The State of New York, opposing the McCray petition, conceded that the Constitution bars the use by a prosecutor of peremptory challenges to exclude potential jurors solely because of their race. 750 F.2d at 1116. Nevertheless, the McCray court, seeing the importance of the issue and the lack of agreement among the courts on this question, examined the meaning of Swain and its continued vitality. 750 F.2d at 1118.

The majority in McCray first addressed the issue of whether decisions subsequent to Swain had effectively overruled it. Despite its own obvious dissatisfaction with Swain and criticism from commentators and more recently, from courts, the McCray panel found that the strictures of Swain still remained valid when the analysis is based only on the Equal Protection Clause. 750 F.2d at 1123-24. Still, the majority in McCray implies that Swain should have been decided differently, in light of the impossibility of showing racially motivated abuse of peremptory challenges in case after case, rather than merely in the case at hand.

The McCray court pointed out that “almost no other defendants in the nearly two decades since the Swain decision have met th[e] standard of proof” required under Swain. Rather than seeing this as evidence that Swain had not resulted in the wholesale exclusion of blacks from petit jury panels, as had originally been feared, see e.g., Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157 (1966), the McCray court cited a handful of decisions where there was evidence of discriminatory use of peremptory challenges in a specific case, but no pattern, apparently perceiving those few cases as evidence that the Swain Court had created an insuperable bar to enforcing a conceded right. 750 F.2d at 1120-21.

Commentators have suggested however that the system itself contains an internal sanction against the abuse of peremptory challenges by exercising them in a discriminatory fashion. According to this view, one with which this Court agrees, an attorney would be foolish to waste his not unlimited challenges to exclude persons solely on the basis of race, since this would render him helpless to challenge other jurors who might find it more difficult to accept that attorney’s view of the case. This may well be the reason why so few cases have met the Swain test and, indeed, why relatively few instances of racial discrimination in jury selection have been reported. Saltzburg and Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md.L.Rev. 337, 365 (1982). Furthermore, our Circuit has held in the case of United States v. Newman, 549 F.2d 240 (2d Cir.1977) that:

“Blacks are the major victims of wrongdoers and it is unlikely that they hesitate to convict where the case warrants it. All of the members of this court, hearing the present case, have served more than a decade as judges of the United States District Court for the District of Connecticut. It has been our experience that Black persons, summoned and drawn for jury panels in that court, have been excellent jurors and have shown no predilection to favor or harm any group, class or kind of persons but have judged the facts on the evidence presented in court in the light of the court’s charge.
The right to peremptory challenges is of great importance, both to the Government and to the defendants — but mostly to the defendants, because they are personally involved in the result of the trial and for this reason usually have more of the peremptory challenges than the Government. These challenges provide one of the most effective assurances that a party will have a fair and impartial jury. If, for example, a defendant knows or has a strong suspicion that a particular venireman is hostile to him or believes the venireman has strong or militant views which would make it unlikely, in spite of the court’s instructions, that the venireman would give fair and impartial consideration to the case, and yet the defendant does not have available sufficient evidence to prove these disqualifications on a challenge for cause, he can solve the problem with a peremptory challenge. The same considerations apply to a plaintiff or a prosecutor. Once, however, a plaintiff or prosecutor is required to submit to interrogation concerning his reasons for making a peremptory challenge, it will probably not be long before defendants will be required to do likewise. This, in all likelihood, would spell the end of peremptory challenges; and Blacks and other recognizable minority groups would thereby suffer a major loss in the removal of one of the greatest safeguards the law has provided for a fair trial.” 549 F.2d at 250, n. 8.

The McCray court observed that the Supreme Court’s statement in Swain that no violation of equal protection can occur because blacks and whites “ ‘are alike subject to being challenged without cause’ [citation omitted] ignores practice.” 750 F.2d at 1121. “[A]s a practical matter,” said the McCray court, “the prosecution does not peremptorily excuse whites simply because they are whites.” Id. This case at bar demonstrates that the McCray court’s conclusion on this point is unfounded. In sections such as Bronx County, it is just as likely that a prosecutor will attempt to exclude whites from a jury as it is that he or she would attempt to exclude blacks. And, even in areas where whites are in the majority, a prosecutor, who is so disposed, might very well use his or her challenges to exclude whites solely due to their race in order to obtain a jury panel comprised of as many minority members as possible. This is- likely in a case such as an arson-for-profit trial, where the crime itself impinges more heavily on the poor and minorities, a point not lost on the prosecution in this case. See Habeas Tr. pp. 55, 133.

After finding that Swain was deserving of “scathing” criticism, the McCray court yet found that “Swain is clear, direct and unequivocal,” on the point that any challenge to the exercise of peremptory challenges in a particular case under the Equal Protection Clause could not be sustained. 750 F.2d at 1120-21, 1124.

According to the Second Circuit panel, however, such treatment of Swain as controlling authority was not required where the claim is raised pursuant to the Sixth Amendment. Instead, because each defendant in a criminal case is entitled to trial by an impartial jury comprised of a group of laypersons “representative of a cross-section of the community,” 750 F.2d at 1125 (quoting Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446), and this requirement was made applicable to the states through the Fourteenth Amendment, 750 F.2d at 1124, the Constitution “forbids the exercise of [peremptory] challenges solely on the basis of ... racial affiliation.” Id. at 1131.

Pursuant to its holding the McCray court fashioned a test to be applied in all instances where a criminal defendant challenged his conviction on Sixth Amendment grounds based on the prosecutor’s alleged use of peremptory challenges to exclude persons from the petit jury panel based solely on their membership in a cognizable group:

“[I]n order to establish a prima facie violation of his right to the possibility of a fair cross section in the petit jury, the defendant must show that in his case, (1) the group alleged to be excluded is a cognizable group in the community, and (2) there is a substantial likelihood that the challenges leading to this exclusion have been made on the basis of the individual venirepersons’ group affiliation rather than because of any indication of a possible inability to decide the case on the basis of the evidence presented.
If the defendant establishes such a prima facie case, ‘the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.’ [Citations omitted].
In order to rebut the defendant’s showing, the prosecutor need not show a reason rising to the level of cause. There are any number of bases on which a party may believe, not unreasonably, that a prospective juror may have some slight bias that would not support a challenge for cause but that would make excusing him or her desirable. Such reasons, if they appear to be genuine, should be accepted by the court, which will bear the responsibility of assessing the genuineness of the prosecutor’s response and of being alert to reasons that are pretextual. [Citations omitted]. If the court determines that the prosecution’s presentation is inadequate to rebut the defendant’s proof, the court should declare a mistrial and a new jury should be selected from a new panel.” 750 F.2d at 1131-32.

Essential to the McCray court’s analysis, which invokes the necessity for minitrials on the exercise of prosecution peremptories, were several preliminary findings. As stated earlier, the court had to reject the finding that Swain v. Alabama was applicable in the Sixth Amendment context despite its broad language which expressly proscribes judicial inquiry into a prosecutor’s reasons for challenging any prospective juror and its express holding that nothing in the entire “Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case.” Swain, 380 U.S. at 222, 85 S.Ct. at 837. The McCray majority saw itself as able to circumvent the unequivocal language of Swain because it did “not believe” this reference was intended to mean what it says, since Swain had focused on the Equal Protection Clause, not the Sixth Amendment. 750 F.2d at 1124.

This interpretation assumes that when the broad language of Swain was uttered on March 8, 1965 the Supreme Court did not foresee that less than three years later in Duncan (argued January 17, 1968 and decided May 20, 1968), it would be called upon to find that the “fair trial” requirement of the Sixth Amendment applied to the states through the Fourteenth Amendment. However, by the time Swain was decided, “many of the rights guaranteed by the first eight Amendments to the Constitution ha[d] been held to be protected against state action ... by the Fourteenth Amendment,” including most of the other rights secured by the Sixth Amendment. See Duncan v. Louisiana, supra, 391 U.S. at 148, 88 S.Ct. at 1446, and the cases cited therein in fn. 4-8.

To suppose otherwise, as does the majority in McCray, denigrates the scholarship of those who participated in the majority in Swain. Moreover, the dissent of Justice Goldberg in Swain is illuminating:

“There is nothing in the Constitution of the United States which requires the State to grant trial by jury so long as the inviolability of the peremptory challenge is secured.” 380 U.S. at 244, 85 S.Ct. at 849 (Goldberg, J., dissenting) (emphasis added).

Justice Goldberg’s comment was sufficient to put the entire Supreme Court on notice that its holding would apply to the Sixth Amendment right to jury trial. That the majority remained firm in its position in the face of such trenchant sarcasm is considerable evidence of the intent of that Court to adhere to its holding even on Sixth Amendment analysis.

In his dissenting opinion in McCray, Judge Meskill, while recognizing that the result reached by the majority was “well intentioned,” called it:

“[Unworkable and contrary to the law of this and almost every other circuit. Until today’s decision, federal appellate case law dealing with the racial makeup of juries was uniform; to establish a violation of the Constitution, the defendant had to prove a systematic exclusion of blacks from petit juries that extended over a number of cases. Absent such a showing, the objective existence or nonexistence of a ‘proper’ reason for the prosecutor’s use of a peremptory challenge was irrelevant because the ‘presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.’ Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965).” 750 F.2d at 1135 (Meskill, J. dissenting) (emphasis in original).

Judge Meskill reminded the majority that Swain was not limited to a Fourteenth Amendment equal protection analysis, but was applicable to challenges based on the Sixth Amendment as well: “[W]e cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case.” 750 F.2d at 1135, quoting Swain, 380 U.S. at 222, 85 S.Ct. at 837 (emphasis in original).

The instant case illustrates clearly the practical considerations addressed by Judge Meskill as militating against the conclusion reached by the McCray majority. The peremptory challenge, he said, was used by each side to “ensure that her client faces a jury that at least will be unbiased and at best will be receptive to her view of the case.” Id. at 1137. Exclusion of persons from the petit jury for this purpose is not invidious discrimination, but a process participated in by both sides. “The result of this adversarial system should be an impartial jury.” Id. at 1137. Although the McCray majority might find such a system distasteful, “an attorney has not only a right but an obligation to challenge a prospective juror who may be biased, even if the basis of her belief is a broad generalization, which may not in fact be true.” See id. at 1137-38.

In McCray, as in Roman’s case, the issue was “whether a prosecutor may use peremptory challenges to exclude individual members of a group because she believes that in that particular case they may be biased in favor of members of the defendant’s group.” Id. at 1138 (emphasis in original). The dissent continued:

“A competent prosecutor will only strike a member of the defendant’s group in situations where she believes the possibility of that individual having a group bias — even if very small — is greater than the possibility of some other prospective juror having a bias. Where the group based assumption against members of the defendant’s group is outweighed by some other assumption, the prosecutor will turn to the other assumptions; for instance, if a black college student is being tried in a draft registration case, the prosecutor may prefer to challenge a white social worker rather than a black veteran. By banning the use of such assumptions, the majority has severely limited the effectiveness of the peremptory challenge.” Id. at 1138.

Our preceding discussion of the prosecutor’s peremptory challenges in this case brings us clearly within the rule of McCray in both its aspects. McCray not only holds that without proof of actual bias, a defendant is entitled to a new trial if denied the “fair and undistorted chance” that the possibility that a venire representing a fair cross section of the community will be carried over to the petit jury, and that the Sixth Amendment “simply prohibits the state’s systematic elimination of the possibility of such carryover” by its abuse of peremptory challenges, 750 F.2d at 1129, it also holds that the Sixth Amendment “forbids the exercise of [peremptory] challenges to excuse jurors solely on the basis of their racial affiliation.” 750 F.2d at 1131.

Before leaving the topic, we note agreement with the condemnation by the Court in McCray of a prosecutor who exercises challenges based solely on his or her own personal bigotry or some perceived stereotype concerning a cognizable group, as opposed to case-related reasoning. The fact that such persons were excused due to glaring and unfounded generalizations based on factors such as race is certainly pernicious without regard to the facts of the case. More pernicious still is to permit an individual, convicted of conspiracy to commit arson by blowing up a building within the City of New York, to overturn his conviction merely due to the invidious actions of a prosecutor in excluding a cognizable group from a petit jury concerning which there is no reason to believe that those trial jurors finally selected were not fair and impartial, simply because white jurors had been systematically excluded. Their verdict should not be rendered void merely because of what the prosecutor did. To do so, and to import a number of mini-trials into the jury selection process does a disservice to a system which has served society well for centuries. Nevertheless, our outcome is bound by McCray.

Claim of Ineffective Assistance of Counsel

Not content with having presented this Court with a case clearly within McCray, petitioner insists on obscuring his good claim by insisting on a second claim, essentially frivolous, phrased in terms of “ineffective assistance of counsel,” the usual contention of losers. The ineffective assistance claim, as is so often the case, arises out of a trial tactic concerning the Brooks tapes. There were four such tapes made. The prosecutor played one and part of another to the jury. One of the tapes was held inadmissible by the trial court when offered by defense counsel. (See Trial Tr. at 418-50). This ruling was ostensibly based on the fact that defense counsel attempted to introduce the tape during the prosecution’s case. The stated purpose of the offer was to impeach the witness Brooks, by showing there was no conversation on the tape between Brooks and defendant Roman. This fact was stipulated by the prosecutor. Thus, the only remaining purpose of the offer was apparently substantive. It was within the trial judge’s discretion to conclude that the problem was not whether the tape could come in, but “when does it come in.” (Trial Tr. at 445). Defense counsel did not attempt to introduce the tape of July 4, 1980 into evidence, nor did they offer the balance of another tape played by the prosecutor only in part. (Trial Tr. at 1548).

Petitioner now asserts that the tapes not admitted into evidence were exculpatory and the failure of defense counsel to obtain their admission constituted ineffective assistance of counsel. The argument is that the tapes not played would demonstrate that no conspiracy existed.

A high standard must be met to support an ineffective assistance claim:

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also United States v. Cronic, — U.S. -, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

In the context of this case, failure to reoffer the tapes appears to have been a product of a tactical decision which ought not to be tested by hindsight. If wrong, it was not so deficient as to rise to the Strickland standard. Furthermore, it cannot be said with certainty that the omitted tapes are exculpatory. At best, they seem ambiguous. At worst, their introduction might have been damaging. Defense counsel could and did cross-examine Brooks at length, posing several questions pertaining to the contents of tape recordings not played.

In conclusion, the failure of counsel to introduce all the tapes into evidence did not cause such a breakdown in the adversary process as would render the result of trial unreliable. The actions of counsel did not prejudice the defendant in any way, and, even assuming prejudice, counsel’s representation was reasonable under the circumstances of this case. See Strickland, supra, — U.S. at ---, 104 S.Ct. at 2069-70.

Conclusion

The foregoing constitutes the findings of fact and conclusions of law of this Court following a hearing. The petition is granted and the writ shall issue unless the state shall re-try petitioner before an impartial, validly selected jury within 120 days following appellate finality. Pending such retrial, petitioner is continued on his existing bail.

Settle a judgment on five (5) days notice.

So Ordered.

      . Although permitted to remain at liberty under the conditions that had been imposed by the state court, petitioner is "in custody” for purposes of 28 U.S.C. § 2254. See McCray v. Abrams, 750 F.2d 1113, 1114, n. 1 (2d Cir.1984).

      . Brooks testified that he was sure Roman became aware some time after July 15, 1980 that Brooks was recording the conversations. It appeared from one of the tapes that Roman was staring at Brooks during one of the conversations, supposedly looking for the wiring or the tape recorder itself. (Trial Tr. at 456-58).

      . All names listed are spelled as in the trial transcript.

      . The names in parenthesis are those who replaced persons originally called, but dismissed for cause either by request of counsel or sua sponte by the trial court. Although petitioner alleges that at least one juror was improperly challenged for cause, the intervening ruling of the trial court is sufficient to render such challenge irrelevant to the issue of whether the prosecutor was exercising his peremptory challenges to exclude white persons solely because of their race. The grant or denial of a challenge for cause is directed to sound judicial discretion and there is no evidence here of an abuse of such discretion. Accordingly, rulings on such challenges will not be considered for purposes of this petition. (See Voir Dire at 6).

      . Defense counsel together challenged a total of thirteen jurors, two of whom were white and the rest minorities. For reasons noted in the text we regard this fact as irrelevant.

      . "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, Amend. XIV, Section 1.

      . Every circuit court dealing with the issue with the exception of the case of McCray v. Abrams, which is discussed in the text, has determined that the strictures of Swain v. Alabama were equally applicable in a case involving the Sixth Amendment. See United States v. Canel, 708 F.2d 894 (3d Cir.), cert. denied, — U.S. -, 104 S.Ct. 165, 78 L.Ed.2d 151 (1983); United States v. Whitfield, 715 F.2d 145 (4th Cir.1983); Prejean v. Blackburn, 743 F.2d 1091 (5th Cir.1984); United States v. Clark, 737 F.2d 679 (7th Cir.1984); United States v. Childress, 715 F.2d 1313 (8th Cir.1983) (en banc), cert. denied, — U.S. -, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984); Weathersby v. Morris, 708 F.2d 1493 (9th Cir.1983); United States v. Jenkins, 701 F.2d 850 (10th Cir.1983); United States v. Green, 742 F.2d 609 (11th Cir.1984); see also United States v. Danzey, 622 F.2d 1065 (2d Cir.1980) (use of peremptory challenges in any particular case “denies no cognizable right”); United States v. Newman, 549 F.2d 240, 247 (2d Cir.1977) (exclusion of jurors on the basis of race in case after case is necessary to demonstrate systematic exclusion even where the prosecutors in the case at bar challenged Blacks purposely). Id. at 249). However, several opinions dissenting from the denial of certiorari have been cited as support for the proposition that Swain should not be applied in the Sixth Amendment context. See e.g., Thompson v. United States, — U.S. -, 105 S.Ct. 443, 83 L.Ed.2d 369 (1985); Williams v. Illinois, - U.S. -, 104 S.Ct. 2364, 80 L.Ed.2d 836 (1984); Gilliard v. Mississippi, —— U.S. -, 104 S.Ct. 40, 78 L.Ed.2d 179 (1984); McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983).
      Three state courts have avoided application of the holding in Swain by finding discriminatory use of peremptory challenges to be in violation of state constitutional guidelines. State v. Neil, 457 So.2d 481 (Fla.1984); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978).

      . This concession by the State concerning such a significant issue as the use of peremptories by the prosecution in criminal trials has been termed by one judge to be "incomprehensible.” 750 F.2d at 1135, n. 1 (Meskill, J., dissenting).

      . This conclusion explains the departure of the author of McCray from the earlier opinion in United States v. Danzey, 622 F.2d 1065, 1066 (2d Cir.1980), in which she joined where it was held:
      "While use of peremptory challenges based on a group bias assumption denies no cognizable legal rights ‘in any particular case, ’ ... a substantial issue would arise if peremptory challenges were being used consistently to exclude Blacks from service as jurors in general or in a significant category of cases. [Citations omitted]. But no relief is appropriate unless the offending pattern is sufficiently general and pervasive to support a clear inference of motivation or intent to discriminate against a particular racial or ethnic group. See United States v. Newman, 549 F.2d 240, 249-50 (2d Cir.1977).” (Emphasis added).

      . In Bronx County whites constitute only a plurality of the population; about one-third, according to 1980 census figures. See Habeas Hearing, Ex. 1. Blacks and Hispanics total almost 64 percent. If a panel of sixty venirepersons were selected, assuming one-third or 20 of these persons were white, it would not be difficult for any attorney so disposed, to utilize his or her fifteen peremptory challenges to exclude every white venireperson selected to sit as a prospective petit juror.


source: Caselaw Access Project

author: JAMES M. BURNS, District Judge.

license: Public Domain

text:
    Paul E. MERRELL, Plaintiff, v. Lee THOMAS, Defendant, and Ciba-Geigy Corporation, Dow Chemical Company, Velsicol Chemical Corporation, National Agricultural Chemicals Association and Oregonians For Food & Shelter, Inc., Defendant-Intervenors.
    United States District Court, D. Oregon.
    May 15, 1985.

      Ralph A. Bradely, Bradely & Gordon, Eugene, Or., for plaintiff.
    Dorothy R. Burakreis, Richard W. Rodriguez, Elizabeth A. Peterson, Dept, of Justice, Land and Natural Resources Div., Washington, D.C., Thomas C. Lee, Asst. U.S. Atty., Portland, Or., for defendant.
    Kenneth W. Weinstein, Stanley W. Land-fair, McKenna, Conner & Cuneo, Washington, D.C., for Ciba-Geigy Corp., Dow Chemical Co., Velsicol Chemical Corp., Nat. Agr. Chemicals Ass’n, defendant-intervenors.
    Brendan Stocklin, Enright, DiLorenzo & Dietz, Portland, Or., for Oregonians for Food & Shelter, defendant-intervenors.

      . Lee Thomas is substituted for William D. Ruckelshaus as the Administrator of the EPA pursuant to Fed.R.Civ.P. 25(d).

   OPINION AND ORDER

JAMES M. BURNS, District Judge.

Plaintiff Paul E. Merrell, a resident of Lincoln County, Oregon, brought this action for injunctive relief to set aside the right-of-way use registrations of seven herbicides issued by the Environmental Protection Agency (“EPA”), or its predecessor, under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136, et seq. The seven herbicides whose right-of-way use registrations have been challenged here are Garlon 4, Krenite, dicamba, simazine, diuron, bromacil, and Rodeo. Plaintiff, however, has not alleged that EPA registered these pesticides in violation of any provisions of FIFRA. Instead, he alleges that EPA was required to comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., before it could properly register the seven specified herbicides and that absent compliance with NEPA, the registrations under FIFRA should be held invalid.

This case is presently before the Court on dispositive motions filed by all parties. Plaintiff has moved for partial summary judgment, relying primarily on the Ninth Circuit’s recent ruling in SOS v. Clark, 747 F.2d 1240 (9th Cir.1984) (“SOS”), and the doctrine of collateral estoppel. Defendant Ruckelshaus (hereinafter “EPA”), defendant-intervenors Ciba Geigy, et al, and defendant-intervenor Oregonians for Food and Shelter have each filed motions to dismiss or for judgment on the pleadings. Because evidentiary matter is submitted with the dispositive motions of defendant and defendant-intervenors, I treat all as summary judgment motions under Rule 56. See Fed.R.Civ.P. 12(b), (c).

None of the material facts is in dispute. Except as noted herein, factual assertions (which may be in dispute) in the evidentiary materials are not relevant to the legal issue before the Court: whether the FIFRA registration process is subject to the procedural requirements of NEPA. It is uncontested that EPA (and its predecessor) complied with FIFRA, but not with the procedural requirements of NEPA in registering the seven herbicides at issue here. Having considered each of the written motions and oral arguments presented thereon, I find and hold that defendant and defendant-intervenors are entitled to judgment as a matter of law. Accordingly, I grant defendants’ motions and deny plaintiff’s motion for partial summary judgment.

Merit is lacking in plaintiff’s contention that EPA is collaterally estopped from litigating the question of whether EPA must comply with NEPA in registering pesticides under FIFRA. The SOS decision upon which plaintiff relies does not require EPA to comply with NEPA before it registers herbicides under FIFRA. The Ninth Circuit’s statement in SOS, that “[t]he EPA registration process for herbicides under FIFRA is inadequate to address environmental concerns under NEPA,” 747 F.2d at 1248, is simply not applicable to the issue here. The quoted statement means only that an agency engaged in a program of pesticide use, to which NEPA does apply, cannot rely solely on a FIFRA pesticide registration as a substitute for its own obligation to prepare an impact statement analyzing the environmental impacts of using a certain herbicide in a given location. The Ninth Circuit did not address the issue that is here. Collateral estoppel has no application here.' See, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); United States v. Stauffer Chemical Co., 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984).

Courts have uniformly refused to apply NEPA requirements to EPA’s regulatory responsibilities under any environmental protection statutes which it administers. E. g., Amoco Oil Co. v. EPA, 501 F.2d 722, 749 (D.C.Cir.1974); Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 384-387 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974); Twitty v. North Carolina, 527 F.Supp. 778, 783 (E.D.N.C.1981), aff'd without opinion, 696 F.2d 992 (4th Cir.1982); Maryland v. Train, 415 F.Supp. 116, 121-22 (D.Md.1976).

In addition, three courts have specifically addressed the question of whether NEPA is applicable to EPA in its regulation of pesticides under FIFRA. Wyoming v. Hathaway, 525 F.2d 66, 71-73 (10th Cir.1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976); EDF v. EPA, 489 F.2d 1247, 1254-1257 (D.C.Cir.1973); EDF v. Blum, 458 F.Supp. 650, 661-62 (D.D.C.1978). These courts uniformly have declined to require EPA, under NEPA, to duplicate the environmental analysis already performed under the FIFRA registration process. Furthermore, these courts have found that the FIFRA action at issue was the functional equivalent of a NEPA analysis. Finally, NEPA does not apply to EPA’s exercise of regulatory authority “unless Congress specifically has so directed.” Maryland v. Train, 415 F.Supp. 116, 122 (D.Md.1976). Congress has not so directed with respect to FIFRA.

Congress, under FIFRA, established a comprehensive scheme for the registration and regulation of pesticides, the purpose of which is to “protect man and his environment.” S.Rep. No. 92-838. 92d Cong., 2d Sess. 1 (1972), U.S.Code Cong. & Admin.News 1972, p. 3993. See Ruckelshaus v. Monsanto Co., — U.S. -, 104 S.Ct. 2862, 2867, 81 L.Ed.2d 815 (1984). FIFRA requires the registration of a pesticide upon a determination, inter alia, that it will not cause “unreasonable adverse effects on the environment.” 7 U.S.C. §§ 136a(c)(5). EPA, pursuant to the statute, has promulgated exacting scientific testing requirements for the determination of adverse effects. See 40 C.F.R. Part 158, published at 49 Fed.Reg. 42856 (1984). The Administrator is required to publish in the Federal Register any application for registration of a new pesticide or a new use pattern which has been filed and any comments received. 7 U.S.C. § 136a(c)(4). Further, 136h(d)(l) provides for the release of health and safety data of registered pesticides, including “information concerning the effects of [a] pesticide on any organism or the behavior of [a] pesticide in the environment, including, but not limited to, data on safety to fish and wildlife, humans, and other mammals, plants, animals, and soil, and studies on persistence, translocation and fate in the environment, and metabolism ...” See also Monsanto Co., 104 S.Ct. at 2880. Finally, an individual who is dissatisfied with the Administrator’s decision to register a pesticide may petition the Administrator that it be cancelled or suspended. See EDF v. EPA, 489 F.2d at 1247. The failure to suspend or cancel is a decision subject to judicial review. 7 U.S.C. § 136n(a), (b).

In accordance with the principles set forth in the cases discussed previously, I find that FIFRA’s substantive and procedural provisions for the protection of the environment satisfy the objectives of NEPA, and that Congress simply has not required that EPA superimpose NEPA upon the pesticide registration process. I would emasculate FIFRA if I were to do so.

Notwithstanding plaintiff’s effort to dress his claims in NEPA clothing this action is governed by FIFRA. The relief which plaintiff seeks in this action is, in effect, the cancellation or suspension of the registrations of the pesticides named in the complaint. FIFRA provides the exclusive mechanism to obtain this relief. The facts alleged, even assuming them to be true and considering them in the light most favorable to the plaintiff, do not show that EPA failed to comply with FIFRA in registering the named pesticides. Therefore, even assuming that I have jurisdiction over this matter, plaintiff is not entitled to prevail.

In addition, I find that plaintiff has failed to exhaust his administrative remedies under FIFRA prior to commencing this action for cancellation or suspension of the registrations.

If plaintiff has reason to believe that these pesticides may cause unreasonable adverse effects on the environment, he may petition the Administrator to cancel or suspend their registrations. If the Administrator’s decision is adverse, plaintiff may seek judicial review. Merrell has not availed himself of any of these remedies. Instead, less than one week after telephoning EPA to stop the alleged impending spraying action by Lincoln County, he filed this case. I find the limited contacts which Merrell has had with EPA do not constitute the exercise of the administrative remedies available to him under FIFRA. EPA has not been afforded an opportunity to apply its technical expertise to this matter. Myers v. Bethlehem Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-464, 82 L.Ed. 638 (1938). Thus I am without jurisdiction to review the validity of the named pesticides.

For the foregoing reasons, the motions of defendant and defendant-intervenors are granted and the case dismissed accordingly. Each party shall bear his or its own costs.

IT IS SO ORDERED.

      . Bromacil, dicamba, diuron and simazine were first registered for use in maintaining roadside rights-of-way in 1966, 1967, 1966 and 1958, respectively. These registrations were issued by the United States Department of Agriculture, EPA’s predecessor in pesticide regulation. Glyphosate (the active ingredient in Rodeo) and Krenite were first registered for right-of-way use in 1974 and 1975, respectively. Garlón 4 was first registered for right-of-way use in 1980. The latter three pesticides were registered by EPA. See affidavit of Douglas D. Campt, Director, Registration Division, Office of Pesticide Programs, EPA, submitted in support of EPA motion for summary judgment, at ¶ 16.

      . See also Essex Chemical Corp. v. Ruckelshaus, 486 F.2d 427, 430-431 (D.C.Cir.1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974); Anaconda Co. v. Ruckelshaus, 482 F.2d 1301, 1305-1306 (10th Cir.1973); Duquesne Light Co. v. EPA, 481 F.2d 1, 9 (3rd Cir.1973); Buckeye Power, Inc. v. EPA, 481 F.2d 162, 173-174 (6th Cir.1973); International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 650, f.n. 130 (D.C. Cir.1973); Appalachian Power Co. v. EPA, 477 F.2d 495, 508 (4th. Cir.1973); Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349, 359 (3d Cir.1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973).
      Addendum: I granted these motions by means of an oral opinion at the hearing on December 12, 1984; thereafter I was asked to issue a written opinion. This is it, and it adds to, and somewhat clarifies my oral opinion.


author: DAN M. RUSSELL, Jr., District Judge.

text:
    Thomas J. HILL and Alma Hill, Plaintiffs, v. Louis O. GIUFFRIDA, Director of Federal Emergency Management Agency, and Crawford and Company, Defendants.
    Civ. A. No. S84-0879(R).
    United States District Court, S.D. Mississippi, S.D.
    May 16, 1985.
    George Shaddock, Pascagoula, Miss., for plaintiffs.
    Fred Mannino, Biloxi, Miss., for defendant Crawford and Co.
    Stephen R. Graben, Asst. U.S. Atty., Biloxi, Miss., for defendant Federal Emergency Management Agency.
   MEMORANDUM OPINION

DAN M. RUSSELL, Jr., District Judge.

The cause presently before the Court is the defendant, Crawford and Company’s motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The defendant, Crawford and Company, asserts that according to Mississippi law, an adjusting company is not liable to an insured for their actions in adjusting a claim for the insurer. The plaintiffs, on the other hand, contend that their action against the adjusting company is a separate and distinguishable claim from that against the insurer, Federal Emergency Management Agency.

The Court finds that the Mississippi Supreme Court’s decision in Griffin v. Ware, 457 So.2d 936 (Miss.1984), is instructional in this regard. In Griffin, the adjusting firm of Ware and Wooten was employed by the National Flood Insurance Program (hereinafter Program) to investigate a claim for damages to a home under a flood insurance policy. The adjusting firm recommended to the Program that the claim for damages be denied. The plaintiffs were subsequently able to have their claim reconsidered and settled with the Program based upon the report of another adjuster. The plaintiffs sued Ware and Wooten alleging that they acted in bad faith, and deliberately, maliciously and wilfully stated that the damages were not due to the flood but to poor soil conditions. Griffin, 457 So.2d at 936-7. The trial court granted a Miss.R. Civ.P. 12(b)(6) motion to dismiss and converted it into one for summary judgment. Miss.R.Civ.P. 56.

The Mississippi Supreme Court affirmed the trial court’s decision relying upon Progressive Casualty Insurance Co. v. Keys 317 So.2d 396 (Miss.1975). The court stated that Progressive Casualty “establishes the principle that an adjuster is not liable to an insured for his actions in adjusting a claim for an insurer.” Griffin, 457 So.2d at 939. The court also discussed the duty owed by an adjusting firm, hired independently by the insurance company for adjustment of an insured’s claim and held:

that adjusters employed by an insurer, who were not parties to the agreement for insurance, are not subject to an implied duty of good faith and fair dealing to the insured ... [The adjusters] were employed by the insurer for the sole purpose of investigating appellants’ claim for flood damages. [The adjusters] were not parties to the insurance contract between the appellant and their insurer, hence were not subject to an implied duty of good faith and fair dealing with appellants. [The adjusters] duty was to their principal, not to appellant.

Griffin, 457 So.2d at 940.

The case sub judice presents facts too similar to distinguish. The plaintiffs herein attempt to circumvent the Griffin and Progressive Casualty decisions with allegations that their action against Crawford and Company is a separate and independent one. However, the Mississippi Supreme Court unequivocally held that where an adjusting company is hired by the insurance company to adjust an insured’s claim, the adjusting company’s duty is to their principal, the insurance company, and not to the insured. Therefore, the defendant, Crawford and Company, is subject to a duty which runs to the Federal Emergency Management Agency, but owes no duty to the plaintiffs in the adjustment of their claim. Based upon the foregoing, the Court grants the defendant, Crawford and Company’s motion to dismiss.

An Order in accordance with this Opinion shall be provided as set forth in the Local Rules.


text:
    UNITED STATES of America, Plaintiff v. SHAWNEE, INC. and West of England Ship Owners Mutual Protection and Indemnity Association, In Personam, and the M/V AGAPI, Her Engines, Boilers, Tackle and Appurtenances, In Rem, Defendants.
    No. 85 Civ. 0520 (CLB).
    United States District Court, S.D. New York.
    May 17, 1985.

      Thomas Murphy, U.S. Dept. of Justice, New York City, for plaintiff.
    Patrick J. Bonner, Freehill, Hogan & Mahar, New York City, for defendants.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

By this action filed on January 22, 1985 by the United States under § 311 of the Federal Water Pollution Control Act (“FWPCA” or “the Act”), 33 U.S.C. § 1321, the government seeks to recover $27,721.51 and interest, expended in oil clean-up by the U.S. Coast Guard said to arise from an unlawful discharge by the M/Y AGAPI on February 8, 1980 on the Mystic River at Charlestown, Massachusetts while the vessel was discharging raw sugar in bulk at the Amstar Terminal. The vessel denies responsibility. Defendants include the vessel in rem, the then owner of the vessel, Shawnee, Inc., and the P & I club which provided the Certificate of Financial Responsibility Jor the vessel in accordance with § 311(p) of the Act.

By motion heard and fully submitted on April 29, 1985, defendants seek to dismiss the action as time barred. There is insufficient proof before me to support a finding of laches, and it is doubtful that defendants could prevail on that point. The P & I club issued a Letter of Understanding on the authority of the same attorneys now appearing for defendants, on February 11, 1980. A litigation statement was taken from the Master of the vessel on the same day by the attorneys. The Coast Guard issued an invoice to the Owner on March 24, 1983. Detriment or prejudice from the subsequent delay in bringing suit is not a factor in this case.

We consider only then, the issue of the statute of limitations. The Act itself contains no specific statute of limitations. Liability to reimburse actual costs of cleanup operations attaches only in the event that the owner or operator of the discharging vessel fails to undertake reasonable and proper clean-up operations. As of February 8, 1980 the government, through the Coast Guard, knew of the oil spill and regarded the AGAPI as the likely source, having boarded the vessel to inspect and to take oil samples. The vessel had denied responsibility and refused to conduct its own clean-up. The claim sued on here arose on or close to that date.

This Court agrees that this is essentially an action for restitution, to recover money expended to discharge the duty of clean-up imposed by law on the alleged polluter in the first instance, which the polluter did not perform although obligated to do so. The Coast Guard having performed in its stead, is entitled, under the statute, to be reimbursed. This does not appear to be a tort-founded action, but rather an action in quasi-contract, or a contract which became implied in law in light of the statute, when the vessel owner declined to clean-up and the Coast Guard then did so as required by law. The Fifth Circuit shares this view. United States v. P/B STCO 213, 756 F.2d 364 (5th Cir.1985). Such a conclusion invokes the six year statute of limitations under 28 U.S.C. § 2415(a). The Court does not believe that the introduction, by sponsors of the Act, of H.R. 1232, now pending but not yet adopted, is entitled to any weight on the point until it passes.

Since the claim of the United States is not time barred, summary judgment may not be granted. Whether liability exists presents a triable issue of fact.

The motion is denied. Counsel shall confer with each other, and shall appear before the Court on June 14, 1985 in Courtroom 705 at 9:30 A.M., at which time an agreed pre-trial schedule should be presented orally to the Court for approval.

So Ordered.


author: DiCARLO, Judge:

text:
    AFFILIATED FM INSURANCE COMPANY, as Subrogee of Fiat Motors of North America, Inc. and Fiat Motors of North America, Inc., Plaintiffs, v. The UNITED STATES, Defendant.
    No. 83-7-01039.
    United States Court of International Trade.
    April 19, 1985.

      Podvey, Sachs & Catenacci, Henry J. Catenacci, Newark, N.J., for plaintiffs.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, New York City, Michael P. Maxwell, Washington, D.C., for defendant.
   DiCARLO, Judge:

Between December, 1979 and September 1980, Fiat Motors of North America, Inc. (Fiat) made seventeen entries covering 1,578 automobiles at Wilmington, Delaware. Fiat paid all duties and the vehicles were released to Fiat from the custody of the United States Customs Service (Customs).

In October, 1980, a tidal flood struck the Wilmington port. The vehicles were declared constructive total losses. Affiliated FM Insurance Company (Affiliated) became the owner of the automobiles when it paid Fiat the landed cost of the vehicles, including the duties, under an insurance contract.

Affiliated attempted to mitigate its losses by selling the vehicles for salvage. Affiliated was thwarted from selling the vehicles in the United States when Fiat removed the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) certificates from the vehicles and obtained a preliminary injunction against Affiliated in the United States District Court for the District of New Jersey, enjoining the sale of the vehicles in the United States and Canada. Fiat Motors of North America, Inc. v. Affiliated FM Insurance Co., Civil Action No. 81-25 (D.N.J. March 12, 1982), aff'd, 691 F.2d 490 (3rd. Cir.1982). The United States was not a party to that proceeding. The damaged vehicles were then exported.

The seventeen entries were liquidated between July 24, 1981 and November 5, 1982. On January 6, 1983, Affiliated requested reliquidation of the entries pursuant to section 520(c)(1) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1520(c)(1) (1982). The next day, Affiliated, as subrogee of Fiat, filed protests against the seventeen entries seeking a refund of duties under section 558(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1558(a)(2) (1982). The protests were denied on January 28, 1983.

Affiliated, joined by Fiat, filed the summons and complaint contesting the denial of the protests under 28 U.S.C. § 1581(a) and Customs denial of or failure to act on their section 520(c)(1) claim.

The defendant moves to dismiss the action claiming that the plaintiffs have failed to state a claim upon which relief can be granted. The motion is granted.

The question to be decided is whether plaintiffs are entitled to a refund of duties. Refund of duties after the release of merchandise is governed by section 558(a), which provides:

(a) No remission, abatement, refund, or drawback of estimated or liquidated duty shall be allowed because of the exportation or destruction of any merchandise after its release from the custody of the Government, except in the following cases:
(1) When articles are exported with respect to which a drawback of duties is expressly provided for by law;
(2) When prohibited articles have been regularly entered in good faith and are subsequently exported or destroyed pursuant to a law of the United States and under such regulations as the Secretary of the Treasury may prescribe; and
(3) When articles entered under bond, under any provision of law, are destroyed within the bonded period as provided for in section 1557 of this title, or are destroyed within the bonded period by death, accidental fire, or other casualty, and proof of such destruction is furnished which shall be satisfactory to the Secretary of the Treasury, in which case any accrued duties shall be remitted or refunded and any condition in the bond that the articles shall be exported shall be deemed to have been satisfied.

Plaintiffs rely on the exception provided by section 558(a)(2), arguing that the cars were “prohibited articles” because they could not be sold in the United States after the EPA and NHTSA certificates were removed and the preliminary injunction issued.

The Court disagrees. In order to be “prohibited articles” under section 558(a)(2) the vehicles must have been “prohibited articles” at the time of entry into the United States. See Wm. J. Jones and Co. v. United States, 38 CCPA 158, 161-62, C.A.D. 453 (1951) (plaintiffs must demonstrate “that the involved merchandise arrived in such ... condition as to constitute a prohibited article within the meaning of section 558 ...”); Glazer’s Wholesale Drug Co. v. United States, 51 Cust.Ct. 39, C.D. 2411 (1963). The vehicles were not “prohibited articles” when they entered the United States.

Plaintiffs present no case, and the Court finds none, where duties were refunded under section 558 because the merchandise became “prohibited articles” after entry into the United States. Plaintiffs cite Kreutz & Co. v. United States, 20 CCPA 109, T.D. 45752, (1932) and Kroger Grocery & Baking Co. v. United States, 14 Cust.Ct. 59, C.D. 911 (1945), but in both cases the merchandise was “prohibited articles” when imported.

Simply stated, section 558(a)(2) does not insure importers against loss by refunding duties if merchandise becomes unmarketable after entry. See Camilo E. Rosello, Inc. v. United States, 63 Cust.Ct. 454, C.D. 3935 (1969) (no provision permits refund of duties where merchandise is destroyed after release from custody of Customs).

Since the cars were not “prohibited articles” when entered, plaintiffs fail to state a claim upon which relief can be granted.

The motion to dismiss is granted. Judgment will be entered accordingly.

      . Sale of automobiles in the United States is prohibited without these certificates. See 15 U.S.C. § 1397(a)(1) (1982); 42 U.S.C. § 7522(a)(1) (1982).

      . Customs denied each protest, stating "Protester is not a party within the purview of 19 C.F.R. 174.12”. Defendant conceded at oral argument that if Affiliated demonstrated that it was the subrogee of Fiat under the insurance contract, it could file the protests as the "importer" within 19 C.F.R. § 174.12(a)(1). The Court finds that Affiliated is the subrogee of Fiat.

      . Since protests of eight of the seventeen entries were not timely within section 514(c)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1514(c)(2) (1982), the Court does not have jurisdiction to consider their denial by Customs. Lowa, Ltd. v. United States, 5 CIT 81, 561 F.Supp. 441 (1983), aff'd, 724 F.2d 121 (Fed.Cir. 1984).

      . Plaintiffs fail to state a claim under section 520(c)(1), which is available only to challenge "clerical error, mistake of fact or other inadvertance not amounting to an error in the construction of a law”. See C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust.Ct. 17, 336 F.Supp. 1395 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974) (discussing legislative history of section 520(c)(1)). There is no allegation that Customs has made any mistake of fact or clerical error in this case.


author: FORD, Judge:

text:
    BADGER-POWHATAN, a DIVISION OF FIGGIE INTERNATIONAL, INC., Plaintiff, v. UNITED STATES, et al., Defendants, Rubinetterie A. Giacomini, S.P.A., Defendant-Intervenor.
    No. 85-3-00324.
    United States Court of International Trade.
    April 29, 1985.

      Stewart & Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Charles A. St. Charles, Washington, D.C., Robin R. Starr, Richmond, Va., Figgie Intern., of counsel, for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., Kevin C. Kennedy, Sandra M. Morewitz, U.S. Dept, of Commerce and Marcia Sundeen, U.S. Intern. Trade Com’n, Washington, D.C., of counsel, for defendants.
    Law Office of Larry Klayman, Larry Klayman and John M. Gurley, Washington, D.C., for intervenor.
   FORD, Judge:

Plaintiff, a domestic producer of brass fire protection products, seeks relief in the nature of mandamus to compel the United States Department of Commerce to amend antidumping order issued in the investigation of Certain Brass Fire Protection Products from Italy. 50 Fed.Reg. 8354. More specifically, plaintiff seeks to include within the scope of antidumping order five imported products found not to have caused material injury to a United States industry. Defendants and intervenor oppose plaintiffs application and cross-move for order dismissing plaintiffs complaint for failure to state a claim upon which relief can be granted. Jurisdiction is pursuant to 28 U.S.C. § 1581(i)(4).

The factual background of this action is not in dispute. On January 23, 1984, plaintiff filed an antidumping duty petition with the Department of Commerce and the International Trade Commission (ITC). The petition alleged that imports of brass interi- or fire protection products from Italy were being sold in the United States at less than fair value (LTFV) and causing material injury to the domestic industry. The International Trade Administration (ITA) published a notice of initiation of antidumping investigation on February 21, 1984. 49 Fed.Reg. 6396. Following an affirmative preliminary injury determination by the ITC, the ITA published affirmative preliminary determination of sales at less than fair value. 49 Fed.Reg. 28083.

On November 30, 1984, the ITA published its final affirmative LTFV sales determination. 49 Fed.Reg. 47066. In that determination, the scope of the investigation was described as follows:

Scope of Investigation

The merchandise covered by this investigation includes: Fire hose couplings (1½ and 2½ inch), fog/straight stream nozzles (1½ and 2½ inches), angle-type hose gate valves (1½ and 2½ inch), wedge-disc hose gate valves (2½ inch), single and double clapper Siamese fire department connections (2½ inch inlets and 4 inch outlets), pressure restricting valves, and pressure regulating valves. This merchandise is currently classified under the following item numbers of the Tariff Schedules of the United States (Annotated): fire hose couplings — 657.-3540, fog/straight stream nozzles — 680.-1480, angle-type hose gate valves — 68.-1440, wedge-disc hose gate valves — 680.-1430, single and double clapper Siamese fire department connections — 680.1420, pressure restricting valves — 680.1440, and pressure regulating valves — 680.-2740.

Having found domestic production of each of the seven articles subject to the investigation, the ITC, on February 27, 1985, issued a final affirmative injury determination with respect to two of the like products investigated. 50 Fed.Reg. 7791. For the remaining five products, the ITC found no material injury to the respective domestic industries. Thereafter, on March 1, 1985, the ITA published an antidumping order directing the Customs Service to collect estimated antidumping duty deposits on the two products subject to the ITC’s affirmative injury determinations. 50 Fed. Reg. 8354. It is from this order that plaintiff seeks relief in the nature of mandamus.

Section 731 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673 (1982), provides:

Imposition of antidumping duties

If—

(1) the administering authority determines that a class or kind of foreign merchandise is being, or is likely to be sold in the United States at less than its fair value, and
(2) the Commission determines that—
(A) an industry in the United States—
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially retarded,
by reason of imports of that merchandise, then there shall be imposed upon such merchandise an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the foreign market value exceeds the United States price for the merchandise.

Section 736(a) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673e(a) (1982), provides in part:

(a) Publication of antidumping duty order
Within 7 days after being notified by the Commission of an affirmative determination under section 1673d(b) of this title, the administering authority shall publish an antidumping duty order which—
(1) directs customs officers to assess an antidumping duty equal to the amount by which the foreign market value of the merchandise exceeds the United States price of the merchandise, ...
* * * * # *
(2) includes a description of the class or kind of merchandise to which it applies, in such detail as the administering authority deems necessary, and
(3) requires the deposit of estimated antidumping duties pending liquidation of entries of merchandise at the same time as estimated normal customs duties on that merchandise are deposited.

Plaintiff contends the subject antidumping order impermissibly excluded particular products from the class or kind of merchandise lawfully subject to antidumping duties. In view of this exclusion, plaintiff urges a writ of mandamus should issue to compel the Department of Commerce, specifically the ITA, to correct the antidumping duty order to conform to the requirements of the statute. Plaintiff does hot, by this action, challenge the LTFV sales and material injury determinations made at the administrative level.

Defendants respond that, absent a causal nexus between dumped merchandise and injury to an industry, an antidumping order cannot be entered against merchandise which is not causing injury to a domestic industry. Defendants further suggest where other grounds for relief exist, a writ of mandamus, being an extraordinary remedy, should not issue.

The essence of this dispute involves the conflicting interpretations of 19 U.S.C. § 1673 advanced by the respective parties. Plaintiff proposes an extremely literal interpretation of the statute. Since the ITA found a class or kind of merchandise was being sold in the United States at less than fair value, and the ITC found material injury in two of the seven industries involved, plaintiff concludes the antidumping order should have required estimated duties to be deposited on all seven like products included in the investigation. Thus, under plaintiffs interpretation of § 1673, injury to one industry is all that is required to issue an antidumping duty order covering the entire class or kind of merchandise being sold at less than fair value.

Defendants maintain § 1673 provides for imposition of antidumping duties if the ITA finds a class or kind of merchandise is being sold at less than fair value and the ITC determines an industry is materially injured or threatened with such injury by reason of imports of that merchandise. In defendants’ view, both affirmative LTFV sales and material injury determinations are required before the ITA is authorized to issue an antidumping duty order.

The issue presented by these conflicting interpretations, in its most narrow sense, is whether the term “such merchandise”, as used in § 1673 (supra), refers to the entire class or kind of merchandise being sold at less than fair value or only that merchandise upon which both affirmative LTFV sales and material injury determinations have been made. For reasons set forth below, the Court finds the term “such merchandise” refers to that merchandise which satisfies both the LTFV sales and injury criteria.

19 U.S.C. § 1673d(c)(2) provides in part:

Issuance of order; effect of negative determination. — If the determinations of the administering authority and the Commission under subsections (a)(1) and (b)(1) of this section are affirmative, then the administering authority shall issue an antidumping duty order under section 1673e(a) of this title. If either of such determinations is negative, the investigation shall be terminated ...

Under this section of the statute, an anti-dumping order can be issued only where the ITA’s and the ITC’s determinations are both affirmative. If the ITC material injury determination is negative as to merchandise within the class or kind of merchandise being sold at less than fair value, the ITA has no authority to issue an antidumping order with respect to that merchandise. This is so irrespective of the ITA’s own affirmative LTFV sales determination.

Section 731, as amended by the Trade Agreements Act of 1979, 19 U.S.C. § 1673, reaffirmed the basic standard for the imposition of antidumping duties enunciated in the Antidumping Act of 1921. S.Rep. No. 249, 96th Cong., 1st Sess. 61 (1979), U.S.Code Cong. & Admin.News 1979, p. 381. The antidumping law is remedial, not punitive in nature. It was designed to protect domestic industry from sales of imported merchandise at less than fair value which either caused or threatened to cause injury. City Lumber Co. v. United States, 64 Cust.Ct. 826, 311 F.Supp. 340 (1970), aff'd, 59 CCPA 89, 457 F.2d 991 (1972). Where the domestic industry is not injured, it cannot avail itself of the relief accorded under the antidumping statute. Moreover, inclusion of the phrase “by reason of” in § 1673 is indicative of a causal nexus between the LTFV imports and the injury requirement. This conclusion is well-supported by examination of the legislative history of the antidumping provisions. See, e.g., S.Rep. No. 249 at 74, 75; H.R.Rep. No. 317 at 44.

Plaintiff characterizes the ITC finding of material injury in only two of the seven industries investigated as “re-defining” the “class or kind” of merchandise for which there was an affirmative LTFV sales determination. However, the ITC has on prior occasions found more than one industry to exist within a single class or kind of merchandise as described by the ITA in its final affirmative antidumping duty determinations. The ITA has in turn published a final order conforming to and coterminous with the ITC’s industry and injury determinations. Compare Color Television Receivers from the Republic of Korea and Taiwan, No. 731-TA-134, USITC Pub. 1514 (April 1984) (two industries, only one of which was injured, found to exist within one class or kind of merchandise) with 49 Fed.Reg. 17,824 (1984) (final order coextensive with scope of ITC’s injury determination); Certain Welded Carbon Steel Pipes and Tubes from the Republic of Korea and Taiwan, No. 731-TA-131, 132 and 138, USITC Pub. 1519 (April 1984) (two rectangular pipe and tube industries, only one of which was injured, found to exist within one class or kind of merchandise) with 49 Fed.Reg. 20,045 (1984) (final order coterminous with injury determination); Certain Radio Paging and Alerting Receiving Devices from Japan, No. 731-TA-102, USITC Pub. 1410 (Aug. 1983) (two industries, only one of which was injured, found to exist within one class or kind of merchandise) with 48 Fed.Reg. 37,058 (1983) (final order coterminous with injury determination).

If taken to its logical conclusion, plaintiff’s interpretation of § 1673 would require an affirmative material injury determination in only one industry for the issuance of an antidumping order covering the entire class or kind of merchandise being sold at less than fair value. Such an incongruous result would violate the basic tenets of antidumping duty law. Plaintiff’s interpretation would render the ITC’s role in an antidumping investigation meaningless, as there would be no need to determine the like product or products, industry or industries affected, and injury to the industry or industries. Section 1673 must be construed in connection with the other provisions of the law in this field. The fact that § 1673 may be subject to more than one interpretation does not warrant a construction which contradicts both the vast body of antidumping duty law and the well-established administrative schema.

In Royal Business Machines, Inc. v. United States, 1 CIT 80, 507 F.Supp. 1007, aff'd, 669 F.2d 692 (1980), the Court noted:

“It is plain that the action is directed at the basis of the final determinations and not at the final order. In view of the fact that plaintiff’s actual ag[g]rievement was inclusion in the final determinations, it should have brought an action under 19 U.S.C. § 1516a(2).” id. at 88.

In the case at bar, plaintiff’s actual aggrievement is exclusion from the final ITC determination of material injury. “The final order could not do less than effectuate the final determinations.” Royal Business Machines (supra) at 88.

A writ of mandamus is an extraordinary remedy, available only in extraordinary circumstances and when no meaningful alternatives are available. The Court’s power to issue a mandamus under the All Writs Act (28 U.S.C. § 1651(a)) is limited to situations in which such action is necessary or appropriate in aid of its jurisdiction. Canadian Tarpoly Co. v. U.S. International Trade Commission, 640 F.2d 1322, 68 CCPA 121 (1981).

To grant the requested writ of mandamus in this instance would further serve to grant the ultimate relief available had plaintiff chose to bring an action under § 1516a. If plaintiff’s request is framed as an issue of statutory construction, as a question of law the appropriate avenue of recourse is similarly a § 1516a action. Had the ITA refused to issue the antidumping order following the affirmative determinations, a mandamus action to compel the performance of a ministerial act would have been appropriate. This is not the situation presented here, and there being no challenge to the Court’s jurisdiction over this matter, relief in the nature of mandamus must be denied.

Accordingly, for the reasons set forth herein, plaintiff’s application is denied, defendants’ and intervenor’s cross-motion is granted, and this action is hereby dismissed.

      . The two products found by the ITC to be materially injuring the corresponding United States industries are single and double clapper Siamese fire department connections and pressure restricting valves.

      . As noted by intervenor at the hearing held before the Court, plaintiffs interpretation of § 1673 would, in this instance, subject 71 per cent of the class or kind of merchandise to the antidumping order without the requisite ITC affirmative injury determination.