author: McCURN, District Judge.

text:
    Robert J. SMITH, Plaintiff, v. ONONDAGA COUNTY SUPPORT COLLECTION UNIT, and Robert J. Stone as Commissioner of Onondaga County Department of Social Services, and Ceasar Perales, Commissioner of the New York State Department of Social Services, and Donald Regan, Secretary of the United States Department of Treasury; and Margaret Heckler, in her official capacity as Secretary of the United States Department of Health and Human Services, Defendants. Paul JONZA, Plaintiff, v. CAYUGA COUNTY SUPPORT COLLECTION UNIT, and Commissioner of Cayuga County Department of Social Services, and Ceasar Perales as Commissioner of New York State Department of Social Services, and Donald Regan, as Secretary of Treasury, and Margaret Heckler, in her capacity as Secretary of the United States Department of Health and Human Services, Defendants.
    Nos. 83-CV-1662, 83-CV-1663.
    United States District Court, N.D. New York.
    Oct. 9, 1985.

      Vincent J. Finocchio, Jr., Syracuse, N.Y., for plaintiffs.
    Robert Abrams, Atty. Gen. for State of N.Y., Albany, Patricia E.P. Vincent, Asst. Atty. Gen., Syracuse, N.Y., for Ceasar Pe-rales.
    Legal Div. of Onondaga County, James Morrissey, John Hughes, Syracuse, N.Y., for Onondaga County Collection Unit and Robert J. Stone.
    Robert P. Lewis, Auburn, N.Y., Cayuga County Collection Unit and Cayuga Comr.
    Frederick J. Scullin, Jr., U.S. Atty., Edward R. Broton, Asst. U.S. Atty., Syracuse, N.Y., Louis J. Lombardo, Trial Atty., Tax Div. U.S. Dept, of Justice, Washington, D.C., for Regan and Heckler.
   MEMORANDUM-DECISION AND ORDER

McCURN, District Judge.

Plaintiffs are New York State residents whose income tax refunds have been withheld by the Internal Revenue Service and turned over to New York State to satisfy allegedly unmet child support obligations. They challenge the constitutionality of the federal-state tax intercept program created by section 2331 of the Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 357, 860 (1981) alleging that the tax intercept program’s pre-intercept notice and hearing provisions are inadequate and thus, unconstitutional under the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs seek declaratory and injunctive relief as well as damages.

Presently before the court are cross motions for summary judgment. For the reasons set forth below, the plaintiffs’ motion and the State/County defendants’ motions are granted in part and denied in part. The motion of the Secretary of Health and Human Services and the Secretary of the Treasury is granted.

BACKGROUND

Plaintiffs Smith and Jonza are New York State residents whose marriages ended in divorce. Mr. Smith has two children by his former wife, Mr. Jonza has four. Subsequent to the divorce, both former wives and their children received Aid to Families with Dependent Children (AFDC). As a prerequisite to receiving AFDC benefits, the women assigned their rights to receive child support payments to the State of New York.

In 1977, the Onondaga Family Court ordered plaintiff Smith to pay thirty dollars per week in child support to the Onondaga County Support Bureau. Mr. Smith made sporadic payments but, as of February, 1985, he owed some $1,600.00 to the State. Smith’s name was certified to the IRS for interception of his 1983 income tax refund. He was notified of the potential interception by defendant Heckler on October 14, 1983. The notice stated that Smith’s name was being certified to the IRS for collection of past-due support. The notice also stated that he could contact the Onondaga Support Collection Unit before November 25, 1983 if he believed he did not owe the money. The notice provided the address and telephone number of the agency, but rather than contact the agency, Mr. Smith commenced this action.

Mr. Jonza’s situation is similar to that of Smith. He was ordered to pay thirty-five dollars per week to the State Enforcement Board as of December 5, 1977. This amount was eventually increased to $110 per week. On July 13, 1983, Jonza received notice from the Cayuga County Support Collection Unit that he was some $5,000.00 in arrears and that, unless his account was current by October 31, 1983, his name would be certified to the IRS for interception of his tax refund. Defendant Heckler sent Jonza the same notice that was sent to Smith.

The plaintiffs contend that the notice they received was constitutionally defective in that it did not specify possible defenses and did not provide for adequate hearing procedures before interception. The federal defendants contend that, even if a more detailed notice and hearing are required, they are not the proper parties to provide them. The State and County defendants contend that the plaintiffs lack standing to raise the issue, and that in any event the procedures utilized were constitutionally adequate. In the alternative they argue that newly implemented State regulations have corrected any possible defects in the notice thereby rendering the request for injunctive relief moot. They further contend that the Eleventh Amendment bars any damage award against the State.

DISCUSSION

Pursuant to Fed.R.Civ.P. 56(c), a party is entitled to summary judgment when it has demonstrated “the absence of any material factual issue genuinely in dispute” and that it is entitled to judgment “as a.matter of law.” See Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 115 (2d Cir.1984); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983). The parties here are essentially in agreement as to the content and timing of the notice received by the plaintiffs. At issue here is the adequacy of that notice.

Before turning to the merits of the case, a brief outline of the statutory scheme is warranted.. The tax intercept program is an effort by the Federal Government and State Agencies to alleviate the burden placed on welfare systems by single parents and their children. Many of these families are owed substantial amounts of child support from an absent ex-spouse. When the custodial parent applies for AFDC benefits, he or she is required to assign the right to receive child support payments to the state agency. If the noncustodial parent falls behind in child support payments, the state may certify his or her name to the Secretary of Health and Human Services who then sends the name to the Secretary of the Treasury and the Internal Revenue Service. The non-custodial parent’s income tax refund is then intercepted and sent to the appropriate state agency.

The plaintiffs here challenge the pre-in-tercept notice and hearing procedures provided by both the federal and state defendants. This court recently examined a closely related issue in Presley v. Regan, 604 F.Supp. 609 (N.D.N.Y.1985). In Presley, the plaintiff was a New York resident whose tax refund had been intercepted on behalf of the State of Michigan. Michigan had agreed to provide the plaintiff with a constitutionally adequate notice and hearing, thus the only issue left for the court to decide was whether the plaintiff was enti-tied to a hearing in his home state. The court held that due process does not require a hearing in the taxpayer’s home state. Presley, 604 F.Supp. at 615. Here the issue is not where a hearing must be held, but rather whether the plaintiffs received all the process they were due prior to the interception of their tax refunds.

Due process requires, at a minimum, that any significant deprivation of property “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). The “root requirement” of the due process is that a person is entitled to a hearing before he is deprived of his property. Cleveland Board of Education v. Louder-mill, — U.S.-, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (citations omitted). The opportunity to be heard must be “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In Presley this court held that interception of a citizen’s tax refund is a significant deprivation of property. Presley, 604 F.Supp. at 614. See also Coughlin v. Regan, 584 F.Supp. 697, 707 (D.Maine 1984); Nelson v. Regan, 560 F.Supp. 1101, 1106 (D.Conn.1983), affd on other grounds, 731 F.2d 105 (2d Cir.1984), cert. denied sub nom. Manning v. Nelson, — U.S. —, 105 S.Ct. 175, 83 L.Ed.2d 110 (1984); Marello v. Regan, 574 F.Supp. 586, 595 (D.R.I.1983); Sorenson v. Secretary of the Treasury, 557 F.Supp. 729, 737 (W.D. Wash.1982), affirmed, 752 F.2d 1433 (9th Cir.1985).

Five courts have addressed the question of whether pre-deprivation notice and hearing are required by due process. Of the five, three have held that some form of pre-deprivation notice and hearing is required. Jones v. Ritsema, No. 82-73573, slip op. (E.D.Mich. Feb. 29, 1984); Marcello v. Regan, 574 F.Supp. 586 (D.R.I.1983); Nelson v. Regan, 560 F.Supp. 1101 (D.Conn. 1983). Two courts found that no hearing is constitutionally required before transfer of an obligated parent’s refund. Jahn v. Re-gan, 584 F.Supp. 399 (E.D.Mich.1984); Keeney v. Secretary of Treasury, No. 83-2427, slip op. (C.D.Cal. Oct. 11, 1983). All of the courts applied the test set forth by the Supreme Court in Mathews v. El-dridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Mathews test provides for a balancing of three factors:

First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. at 903.

After weighing these factors in Presley, this court held that the federal defendant was not the proper party to provide so-called interstate plaintiffs with a hearing in their home states. Presley, 604 F.Supp. at 614-15. The court held:

Even if the first two factors both weighed in favor of the plaintiffs, the third factor would tip the scale in favor of the [federal] defendants. The plaintiffs bring this action seeking a declaration that the federal government is the proper party to provide interstate plaintiffs with a hearing in their home state. However, this court agrees with the court in Sorenson that there “is something uniquely inappropriate in involving the Federal Government” in the hearing process, (citation omitted). Although the federal government has an indirect interest in maintaining the fiscal health of the AFDC program, it has little or no interest in the plaintiffs’ tax refunds or the intercept program itself. The federal government’s role in the tax intercept program is merely to act as the states’ bill collector. The IRS acts as a kind of clearinghouse, shuttling the refunds to either the plaintiff or a state agency on behalf of the plaintiff, (citation omitted). Moreover, the financial and administrative burdens involved in implementing a procedure for holding predeprivation hearings on a federal level would be prohibitively high.

Presley, 604 F.Supp. at 614-15.

The court now holds that this reasoning is as applicable to intrastate plaintiffs as it is to interstate plaintiffs. The federal government is simply not the proper party to provide taxpayers with due process. That is not to say, however, that taxpayers are not entitled to due process prior to interception and transfer of their refunds. With regard to the State and County defendants it is likely that the Mathews factors would tip in favor of the plaintiffs, but it is not necessary for the court to evaluate the factors as New York State has already instituted constitutionally adequate procedures. Since 1984, delinquent taxpayers have received a detailed notice that lists possible defenses and explains the procedures for obtaining a hearing. The notice also explains that certain problems can only be resolved by the New York State Family Court and that final agency action may be appealed by bringing an Article 78 proceeding in the New York State Supreme Court.

The only remaining question is whether plaintiffs received adequate pre-intercept notice and opportunity to be heard. It is clear that Mr. Smith and Mr. Jonza did not receive all the process they were due. The notice received by Smith and Jonza did not list defenses or appeal procedures. Neither plaintiff was afforded an opportunity for a hearing. However, it is difficult to see how the plaintiffs were injured by their lack of notice and opportunity to be heard. Both plaintiffs have raised challenges to the intercept that must eventually be resolved by the Family Court, thus the defendants have argued that even if the plaintiffs had been afforded adequate due process, the agency would have been unable to grant them the relief they seek. Nevertheless, the plaintiffs should have afforded an adequate predeprivation notice and hearing. Injunctive and declaratory relief are an inappropriate remedy, however, as current New York State procedures fully comply with due process requirements. Moreover, there is no evidence of any actual injury to the plaintiffs, thus, any damage award would be limited to nominal damages for the constitutional deprivation inflicted by the State. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Bradley v. Coughlin, 671 F.2d 686 (2d Cir.1982); Huntley v. Community School Board of Brooklyn, 579 F.2d 738 (2d Cir.1978); McCann v. Coughlin, 698 F.2d 112 (2d Cir.1983). The court, however, is barred from awarding damages against the State by the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). In lieu of damages the court orders that plaintiffs Smith and Jonza be afforded hearings under the New York State procedures set forth in footnote 4, supra. The court expresses no opinion as to the merits of the plaintiffs’ claimed defenses.

Finally, plaintiffs have requested an award of attorney’s fees pursuant to 42 U.S.C. § 1988. Section 1988 provides, in relevant part:

In any action or proceeding to enforce a provision of [section 1983] of this title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

In a recent Supreme Court decision the Court stated:

If a plaintiff prevails in a suit covered by § 1988 fees should be awarded as costs ‘unless special circumstances would render such an award unjust.’

Kentucky v. Graham, — U.S. —, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). States may be liable for attorney’s fees when State officials are sued in their official capacities and the plaintiff prevails. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); McCann v. Coughlin, 698 F.2d 112 (2d Cir.1983). The Second Circuit stated in McCann:

The policy underlying [§ 1988] is to encourage litigants to assume the role of private Attorney General. This policy may be served by granting a fee request even where a plaintiff is unable to prove actual damages resulting from his constitutional deprivation. The Supreme Court’s decision in Carey v. Piphus ... makes clear that a party may prove a violation of his due process rights and still be unable to show the requisite causation required for an award of compensatory damages. The fact that a plaintiff is awarded only nominal damages does not indicate that he has been unsuccessful or has not prevailed on his claim.

McCann, 698 F.2d at 129. See also Gin-gras v. Lloyd, 740 F.2d 210, 212 (2d Cir. 1984) (“The thread common to ... interpretations of ‘prevailing’ is that plaintiff has achieved some vindication of his rights as a result of the lawsuit.”)

Plaintiffs Smith and Jonza were each deprived of their right to procedural due process. They are now entitled to proper notice and opportunity to be heard. Thus, they have prevailed within the meaning of § 1988. Attorney’s fees are awarded to plaintiffs to the extent that they have prevailed in an amount to be determined by the court upon presentation to the court of proper documentation. See McCann, 698 F.2d at 129.

IT IS SO ORDERED.

      . Actions 83-CV-1662 and 83-CV-1663 were consolidated pursuant to Fed.R.Civ.P. 42(a) on April 17, 1985.

      . For a more detailed description of the tax intercept program see this court’s opinion in Presley v. Regan, 604 F.Supp. 609 (N.D.N.Y. 1985).

      . Notwithstanding the decision in Jahn, Michigan follows the procedures set forth in Jones v. Ritsema, No. 82-73573 slip op. (E.D.Mich. Feb. 29, 1984).

      . The notice sent by New York State reads as follows:
      IMPORTANT INFORMATION REGARDING YOUR INCOME TAX REFUNDS AND OVERDUE CHILD SUPPORT PAYMENTS OR ARREARS
      Our records indicate that you are overdue in making your scheduled child support payments, and/or have an unpaid balance on your court ordered child support arrears, in the amount shown in the "Special Notice” on the enclosed billing statement. This amount only represents the money that you owe as a result of your children receiving public assistance.
      The law says that we may have the right to take all or part of your tax refund if you owe past-due child support or court ordered arrears. If you do not pay the amount shown on your bill by November 15, 1984, we will take action to have your Federal and/or New York State and New York City income tax refund taken to pay your overdue or unpaid child support.
      However, we cannot keep your refund if you pay the stated amount, or have already paid that amount and show us that it has been paid, or you do not owe the money. You may not owe us the money for a number of reasons which include the following:
      1. WRONG PERSON. You are not the person identified as owing child support.
      2. FAILURE TO ASSIGN SUPPORT. Support rights of a child you have been ordered to support were never assigned to the Department of Social Services.
      3. NO PUBLIC ASSISTANCE PAID. Your child was not or is not getting public assistance (which gives us the right to the support).
      4. NO COURT ORDER. You are not under court order to pay support; or your support order was vacated by the court.
      5. WRONG AMOUNT. The amount shown on your bill is not right because a payment you made was not credited to you, or the balance due was not accurately computed, or the weekly/monthly amount due or arrears balance is incorrect or was changed.
      6. CHANGED CIRCUMSTANCES. Because of changed circumstances you may have your support order changed, even as to payments you already owe. These circumstances include loss of your job or the fact that you earned less money than you thought you would. If you believe that you should not pay the amount due for this reason, you have the right to ask the Family Court for an order directing that your support order be changed. This may be accomplished only by the filing of a formal petition in Family Court for that purpose.
      If you have a defense for not paying the amount we say you owe, you may have us review your file and your reason for not paying. To obtain a review of your case, you must call or write to us at the address and telephone number indicated in the billing statement. If your billing statement is from the Support Collection Unit in one of the New York City boroughs, you must call (212)245-9200. You may be represented by an attorney or other person when you ask us to review your case. If you do not have an attorney or friend to help you, free legal services may be available at your local legal services or legal aid organization.
      When you call our office to make arrangements to discuss your case and your reasons for not paying, clearly state your name, account number, and the issue involved in your case. We will tell you what you need to show in order to prove that you have a defense for not paying, and we will also review your file for any errors. At this time, you may also request to review your file and your records of payment to see if they are correct. Copies of your records will be given to you if you ask us for them.
      In order to prove your defense, you will then be required to send us copies of written documents showing that you do not owe the money. You may include a written explanation of why you did not pay. If you do not have written documentation or if you need to present evidence other than written documents, you may have a conference with us. At the conference you will be able to present written and oral evidence about your case and your defenses for not paying. The conference is the last step in our review of your case and the decision after the conference will be final.
      After you send in written evidence or have a conference, you will receive a written decision of the reasons for our action whether or not we agree with you. Our decision will be based only upon the evidence you present and the evidence in your file.
      If we decide that you have a defense for not paying your child support, we will not keep your tax refund. However, if your refund is paid to us even though we decided that it should not be or that only a part of it should be, we will repay you for the amount we decided you did not owe. The US Internal Revenue Service or the New York State Department of Taxation and Finance will send you a letter telling you that it paid your refund to us to pay your child support. Repayment will be made within 30 days of your bringing that letter to the Support Collection Unit.
      If you do not believe that our final decision after the conference is correct, you may seek review of that decision by the Supreme Court of the State of New York by bringing a legal proceeding authorized by Article 78 of the Civil Practice Law and Rules. This legal proceeding must be brought within four months of the date that you are notified of our final decision. The Court will review our decision to see if we were correct. You should see an attorney about how to bring an Article 78 proceeding. If you have no attorney or cannot affort [sic] to hire one, you should call your local legal services organization for help.
      You are reminded that if you believe that the amount of support ordered by the Court is too high or that your payments should be suspended, you may petition the Family Court to change the amount or to suspend payment. Also, if you are being denied visitation of your children, you should contact the Court. The Department cannot review the amount of a court order, suspend payments of ordered support or enforce visitation rights; you must contact the Family Court to resolve these matters.
      Sincerely,
      Supervisor, Support Collection
      Unit

      . The court notes that plaintiffs did not specifically refer to this action as one brought pursuant to 42 U.S.C. § 1983, however, it is a suit to redress constitutional violations inflicted under color of state,law and the court will treat the action as one commenced pursuant to § 1983.


source: Caselaw Access Project

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

license: Public Domain

text:
    John C. HUTCHINSON, Plaintiff, v. BENTON CASING SERVICE, INC., Income Security Corporation, Inc., and Louisiana Oilfield Contractors Association, Defendants.
    Civ. A. No. E84-0129(L).
    United States District Court, S.D. Mississippi, E.D.
    Oct. 9, 1985.

      Mark S. Howard, Waynesboro, Miss., for plaintiff.
    T. Mark Sledge, Jackson, Miss., Gregory E. Tonore, Lafayette, La., for defendant Louisiana Oilfield Contractors Ass’n.
    Brooke Ferris, Laurel, Miss., for defendant Benton Casing Service, Inc.
    Dan R. Wise, Hattiesburg, Miss., for defendant Income Sec. Corp., Inc.
   MEMORANDUM OPINION

DAN M. RUSSELL, Jr., District Judge.

This cause is presently before the Court upon the defendant, Income Security Corporation, Inc.’s (Income), motion for partial summary judgment. Income contends that the recent decisions of the United States Supreme Court and the Fifth Circuit Court of Appeals hold that the plaintiff is not entitled to extra-contractual damages under the provisions of the Employee Retirement Income Security Act of 1974, (ERISA), 29 U.S.C. § 1001 et seq. The cause of action arises out of an alleged wrongful termination of medical benefits under an employee benefit plan established under ERISA. After careful review of the applicable law and the submitted briefs, the Court requested affidavits from all the parties addressing the question of whether the employer, Benton Casing Service, Inc.’s ERISA plan was self-funded, self-insured, or was a plan which was funded by the purchase of insurance from a commercial insurance company.

The plaintiff originally brought this action in the Circuit Court of Wayne County, Mississippi. The plaintiff sought $175,-000.00 compensatory and exemplary damages and asserted claims under Mississippi law for “bad faith” breach of contract. The action was subsequently removed to this Court by the defendant, Louisiana Oilfield Contractors Association (LOCA). Thereafter, the plaintiff was allowed to amend his complaint. In his amended complaint, in addition to those claims asserted above, the plaintiff asserted various claims under ERISA; breach of 29 U.S.C. § 1109(a), “Liability for breach of fiduciary duty” and breach of 29 U.S.C. § 1307, “Payment of premiums.” The Court will first determine whether the plaintiff’s claim for extra-contractual damages for the alleged breach of § 1109(a) and § 1307 is pre-empted by ERISA. The Court’s second determination is whether the plaintiff’s tort and contract claims are saved from preemption by 29 U.S.C. § 1144(b)(2)(A) or are pre-empted by the so-called “deemer clause”. 29 U.S.C. § 1144(b)(2)(B).

There can be no doubt that the law dis-positive to the above issues can be found in Massachusetts Mutual Life Ins. Co. v. Russell, — U.S. —, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985); Metropolitan Life Ins. Co. v. Massachusetts, — U.S. —, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985), and Dedeaux v. Pilot Life Ins. Co., 770 F.2d 1311 (5th Cir.1985).

The Russell decision is determinative of the first issue above. In Russell, the Supreme Court addressed the issue of whether under ERISA, a fiduciary to an employee benefit plan may be held personally liable to a plan participant for extra-contractual damages caused by improper or untimely processing of benefit claims. The respondent, Doris Russell, was a claims examiner for Massachusetts Life Insurance Company and also was a beneficiary under two employee benefit plans, both governed by ERISA. Russell became disabled with back ailments in May, 1979 and received plan benefits until October, 1979 when a disability committee terminated her benefits. Russell requested a review of that decision alleging a psychosomatic disability. A second physician confirmed that Russell was temporarily disabled and she was reinstated benefits. Two days later retroactive benefits were paid in full. She brought a bad faith claim in the California state courts based on state law and on ERISA. Massachusetts Mutual removed the case to United States District Court for the Central District of California. The District Court held that state law claims were pre-empted by ERISA and that ERISA barred any claims for extra-contractual damages and punitive damages arising out of the original denial of plaintiff’s claims for benefits under the Salary Continuance Plan and the subsequent review thereof. The Court of Appeals agreed with the District Court that state law causes of action were pre-empted by ERISA but held that her complaint stated a claim under ERISA. The Court read § 1109(a) of ERISA to authorize “such other equitable or remedial relief as the Court may deem appropriate” as giving it “wide discretion as to the damages to be awarded”, including compensatory and punitive damages. Russell v. Massachusetts Mutual Life Ins. Co., 722 F.2d 482, 490-491 (9th Cir.1983). The Supreme Court reversed.

The Court held that § 1109(a) does not provide for an award of extra-contractual damages to a beneficiary. The Court also responded to the plaintiff’s argument that a private right for extra-contractual damages should be implied even if not expressly authorized by ERISA. The Court’s response was that “ ‘unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.’ Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94 [101 S.Ct. 1571, 1582, 67 L.Ed.2d 750] (1981). ‘The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide.’ California v. Sierra Club, 451 U.S. 287, 297 [101 S.Ct. 1775, 1781, 68 L.Ed.2d 101] (1981).” Russell, supra, — U.S. at —, 105 S.Ct. at 3092.

Finally, the Court cited to the six carefully integrated civil enforcement provisions found in § 1132(a) as providing strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.

We are reluctant to ‘fine-tune’ an enforcement scheme crafted with such evident care as the one in ERISA. As we stated in Transamerica Mortgage Advis-ors, Inc. v. Lewis (TAMA), 444 U.S. 11, 19 [100 S.Ct. 242, 246, 62 L.Ed.2d 146] (1979): ‘[W]here a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.’ See also Touche Ross & Co. v. Redington, 442 U.S. 560, 571-574 [99 S.Ct. 2479, 2486-2488, 61 L.Ed.2d 82] (1979). ‘The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.’ Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S., at 97 [101 S.Ct., at 1583].
In contrast to the repeatedly emphasized purpose to protect contractually defined benefits, there is a stark absence — in the statute itself and in its legislative history — of any reference to an intention to authorize the recovery of extra-contractual damages. Because ‘neither the statute nor the legislative history reveals a congressional intent to create a private right of action ... we need not carry the Cork v. Ash inquiry further.’ Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S., at 94, n. 31 [101 S.Ct., at 1582, n. 31].
* sjs # * s}s #
Thus, the relevant text of ERISA, the structure of the entire statute, and its legislative history all support the conclusion that in § 409(a) [§ 1109(a)] Congress did not provide, and did not intend the judiciary to imply, a cause of action for extra-contractual damages caused by improper or untimely processing of benefit claims.

Russell, supra, — U.S. at —, 105 S.Ct. at 3093.

The plaintiff’s Second Amended Complaint alleges that the defendant, Benton Casing Service, Inc., (Benton), as named fiduciary under the ERISA plan, owed a fiduciary duty to the plaintiff and other plan participants. The paragraph further alleges that the defendant, Benton, breached the fiduciary duties and obligations it owed to the plaintiff. The complaint paragraph does not specifically assert that the cause of action arises under 29 U.S.C. § 1109(a). Assuming arguendo that the plaintiff has asserted a claim under § 1109(a) it is clear that Russell would preclude the recovery of extra-contractual damages. Whether plaintiff’s state law cause of action for breach of fiduciary duty is pre-empted will be discussed later herein.

The plaintiff has also asserted “[t]hat pursuant to the terms and provisions of 29 U.S.C. Section 1307, the Defendants, Income Security Corporation, Inc., and LOCA, should not have terminated Plaintiff’s ERISA Plan coverage because of the failure of Defendant, Benton Casing Service, Inc., to pay the premiums.” Second Amended Complaint, p. 5. The plaintiff seeks both compensatory and exemplary damages for these acts of the defendants.

Section 1307 is just one section in ERI-SA’s insurance termination program. ERI-SA’s insurance termination program provides for the payment of vested pension benefits when a plan is terminated with assets which are insufficient to pay the benefits in full. The statute establishes within the Department of Labor a corporation, the Pension Benefit Guaranty Corporation (PBGC) that administers the pension plan termination program. PBGC guarantees the payment of benefits subject to the limit of the lesser of the employee’s average wages during his highest paid five years, or $750 per month. If the plan has not been in effect for five years or more, the coverage is prorated. 29 U.S.C. § 1322. To pay for this termination insurance the plan administrator of each plan is required to pay the PBGC a premium. 29 U.S.C. § 1307.

There are several problems with the plaintiff’s assertion of a breach of § 1307. Section 1307 states in pertinent part that “[t]he plan administrator of each plan shall pay the premiums imposed by the corporation under the subchapter with respect to that plan when they are due.” It appears that any breach of this statute would give rise to a cause of action by the corporation, the PBGC, and not the plan beneficiary, the plaintiff. However, the insurance termination program as a whole benefits the beneficiary. The statutes provide for suits against the PBGC; 29 U.S.C. § 1303(f) by any participant, beneficiary, plan administrator or employee adversely affected by the corporation (the PBGC). There is also a provision whereby

[a] plan fiduciary, employer, plan participant, or beneficiary, who is adversely affected by the act or omission of any party under this subtitle with respect to a multiemployer plan, or an employee organization which represents such a plan participant or beneficiary for purposes of collective bargaining, may bring an action for appropriate legal or equitable relief or both.

29 U.S.C. § 1451(a)(1). (emphasis added). This is clearly not a suit against the PBGC as it is not a party hereto. Furthermore, the plaintiffs complaint does not sufficiently state a cause of action under § 1451(a)(1). Even if the Court were to liberally construe the plaintiffs pleadings it is clear that Russell would preclude recovery of extra-contractual damages under 29 U.S.C. § 1451(a)(1).

The second issue which needs to be decided in this motion is whether the plaintiffs tort and contract claims under Mississippi law are saved from pre-emption by the “insurance saving clause”, § 1144(b)(2)(A) or fall within the provisions of the “deemer clause”, § 1144(b)(2)(B). The Supreme Court’s decision in Metropolitan Life Ins. Co. v. Massachusetts, — U.S. —, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985), and the Fifth Circuit’s decision in Dedeaux v. Pilot Life Ins. Co., 770 F.2d 1311 (5th Cir.1985) speak to these issues.

The issue before the Supreme Court in Metropolitan Life Ins. Co. v. Massachusetts, supra, was whether a Massachusetts statute, Massachusetts Gen.Laws Ann., ch. 175, § 47B (West Supp.1985), was preempted by the Employee Retirement Income Security Act of 1974. The Massachusetts statute, a mandated-benefit statute, required that specified minimum mental health care benefits be provided to a Massachusetts resident who is an insured under a general insurance policy, an accident or sickness insurance policy, or an employee health care plan. The Massachusetts statute was designed to address some of the problems encountered in treating mental illness. The Commonwealth felt that its working people needed protection from the high costs for treatment of mental illness and also felt that the voluntary insurance market was not adequately providing mental health coverage. Therefore, the Commonwealth mandated minimum coverage levels to remedy these problems.

Metropolitan and Travelers Insurance Company contended that since ERISA preempted the Massachusetts statute (§ 47B) it was unnecessary for them to provide the mandated benefit in any ERISA plan. Thus, the narrow issue presented to the Court was whether the Massachusetts mandatory benefit law was a law “which regulates insurance” within the meaning of § 1144(b)(2)(A) such that it would not be pre-empted by § 1144(a).

Section 1144(a) of ERISA is the broad pre-emption statute and provides for the supercedure of “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . .” 29 U.S.C. § 1144(a). However, § 1144(b)(2)(A), the “insurance saving clause” provides that, with one exception, nothing in ERISA “shall be construed to exempt or relieve any person from any law of any State which regulates insurance.” 29 U.S.C. § 1144(b)(2)(A). The one exception, the “deemer clause”, states that no employee benefit plan or trust established under such a plan with certain exceptions not relevant here, “shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.” 29 U.S.C. § 1144(b)(2)(B).

The Court concluded that Massachusetts’ mandated benefit laws were laws that regulated insurance thereby falling within the plain language of ERISA’s insurance saving clause. Metropolitan, supra, — U.S. at —, 105 S.Ct. at 2390. The Court’s conclusion is not dispositive of the issues raised in the case at bar. However, the Court’s interpretation of the “deemer clause” and its relationship to the “insurance saving clause” is highly probative and important to the question of pre-emption of state law claims. The Court stated in pertinent part as follows:

By exempting from the saving clause laws regulating insurance contracts that apply directly to benefit plans, the deem-er clause makes explicit Congress’ intention to include laws that regulate insurance contracts within the scope of the insurance laws preserved by the saving clause. Unless Congress intended to include laws regulating insurance contracts within the scope of the insurance saving clause, it would have been unnecessary for the deemer clause explicitly to exempt such laws from the saving clause when they are applied directly to benefit plans.

Metropolitan Life Insurance Co., supra, — U.S. at —, 105 S.Ct. at 2390. In response to the insurers’ argument that traditional state laws are subject to the insurance saving clause while laws that regulate the substantive terms of an insurance contract are not saved by § 1144(b)(2)(A) the Court found weak support for the insurer’s “rather unnatural reading of the clause” and noted the following:

We therefore decline to impose any limitation on the saving clause beyond those Congress imposed in the clause itself and in the “deemer clause” which modifies it. If a state law “regulates insurance", as mandated-benefit laws do, it is not preempted. Nothing in the language, structure, or legislative history of the Act supports a more narrow reading of the clause, whether it be the Supreme Judicial Court’s attempt to save only state regulations unrelated to the substantive provisions of ERISA, or the insurers’ more speculative attempt to read the saving clause out of the statute. We are aware that our decision results in a distinction between insured and uninsured plans, leaving the former open to indirect regulation while the latter are not. By so doing we merely give life to a distinction created by Congress in the “deemer clause”, a distinction Congress is aware of and one it has chosen not to alter. We also are aware that appellants’ construction of the statute would eliminate some of the disuni-formities currently facing national plans that enter into local markets to purchase insurance. Such disuniformities, however, are the inevitable result of the congressional decision to “save” local insurance regulation. Arguments as to the wisdom of these policy choices must be directed at Congress.

Metropolitan Life Insurance Co., supra, — U.S. at —, 105 S.Ct. at 2393. (emphasis added).

The Fifth Circuit’s determination and reversal of this Court’s decision in Dedeaux v. Pilot Life Insurance Co., 770 F.2d 1311 (5th Cir.1985) relied entirely upon Metropolitan. The Fifth Circuit determined that Dedeaux’s common law causes of action were not pre-empted by ERISA. In doing so, the Court made apparent certain distinctions which are relevant herein. For instance, in Dedeaux, Pilot Life argued that common law causes of action could not be construed to be “law[s] ... which regulate[ ] insurance;”

that to hold otherwise would create an irrational and indefensible distinction between plans that are self-insured and those that are insurance-funded. See supra n. 2. This result occurs if Dedeaux’s claims fall within the saving clause. There is no question that because of the deemer clause, which limits the effect of the saving clause, Dedeaux would have no claims outside of the ERISA scheme if Entex self-insured the Entex Plan. Why, Pilot Life asks, should plan beneficiaries and participants be afforded additional rights and remedies merely because Entex purchased an insurance policy to create the Entex Plan?

Dedeaux, supra, 770 F.2d at 1314. The Fifth Circuit noted that the Supreme Court in Metropolitan clearly and unequivocally repudiated the argument raised by Pilot Life. Id. The Fifth Circuit also emphasized the Supreme Court’s recognition that the distinction between insured plans and uninsured plans was a problem Congress needed to face.

We are left with the unavoidable conclusion that state laws proscribing the same conduct as ERISA may provide a cause of action in place of, in addition to, or coequal with any cause of action available under ERISA. See Eversole v. Metropolitan Life Insurance Co., 500 F.Supp. 1162, 1170 (C.D.Cal.1980). De-deaux’s common law causes of action for Pilot Life’s failure to pay disability benefits, therefore, are not pre-empted. We are not unmindful of the practical consequences of this decision. As the Supreme Court stated in Metropolitan Life, however, those concerns must be directed to Congress.

Dedeaux, supra, 770 F.2d at 1317. The Eversole decision cited by the Fifth Circuit best explains the effect of the “deemer clause”.

That clause creates an exception to the savings clause; it prevents an employee benefit plan from being “deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts ...” The deemer clause bars a state from treating a plan as if it were an insurance company because the drafters must have assumed that if the plan were an insurance company, it would still be subject to state law due to the savings clause. The effect of the deemer clause is to prohibit a state from regulating an employee benefit plan even though the plan serves as a self-insurer on its benefits.
Thus, the deemer clause distinguishes between true insurance companies, which are subject to state law, and employee benefit plans, which are exempt from state regulation even though they exhibit some of the same risk-distributing characteristics as traditional insurance.

Eversole v. Metropolitan Life Insurance Co., supra, 500 F.Supp. at 1169. (citations omitted). The issue at bar thus becomes whether the employee benefit plan covering the plaintiff was self-funded, self-insured, within the meaning of the “deemer clause”.

The affidavit of Mary Samaha, Secretary-Treasurer of Benton Casing Service, Inc. states in pertinent part as follows:

4. The plan was self-funded from employer contributions. No contributions were made by the employees. Premiums on each eligible employee were paid each month by Benton Casing Service, Inc. directly to Income Security Corporation, the plan supervisor. No funds were used by Benton to purchase a group insurance policy from a commercial insurance company for the purpose of finding the plan.
5. Benton has no knowledge of any plan funds being used to purchase group insurance to fund the plan. As far as Benton is concerned, the plan was self-insured with funds of it and other Louisiana Oilfield Contractors Association’s members.

The affidavit of Randy K. Haynie, Executive Director of the Louisiana Oilfield Contractors Association, Inc. (LOCA), avers as follows:

The Louisiana Oilfield Contractors Association, Inc. Employee Benefit Trust was established under the Employee Retirement Income Security Act, 29 U.S.C. Section 1001, et seq. (E.R.I.S.A.). This trust is a fully self-funded, self-insured program wherein all claims paid are paid from trust funds resulting from premium dollars received by the trust. At all times pertinent to the subject litigation involving John C. Hutchinson, the trust maintained aggregate stop-loss re-insurance and specific stop-loss re-insurance, which re-insurance protected the trust from catastrophic loss. Payments under the re-insurance protection were payable only to the trust, and not to beneficiaries of or participants in the plan. No premium payments on behalf of Mr. Hutchinson or his dependents were ever made by Mr. Hutchinson himself. All premium payments on behalf of Mr. Hutchinson and his dependents were paid by his employer, Benton Casing Service, Inc.

The affidavit submitted on behalf of the plaintiff by plaintiffs attorney asserts that LOCA and Income formed their own insurance company whereby LOCA members such as Benton Casing could purchase insurance coverage for its employees. It further asserts that Benton could not be deemed a self-insurer and that Benton did not self-insure to a certain monetary limit and purchase a so-called “stop loss” policy to cover any claim over that amount. The plaintiffs affidavit thus concludes by contending that Benton purchased a group insurance policy from LOCA, a commercial insurance company.

Under Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment “is appropriate only where everything in the record demonstrates the absence of a genuine issue of material fact.” Simon v. United States, 711 F.2d 740, 745 (5th Cir.1983). The burden is on the movant to show his right to summary judgment with such clarity as to leave no room for dispute; that the other party, is not entitled to recover under any discernible circumstances. Moreover, all doubts are to be resolved against the moving party. Id. The resisting party may not, however, create a genuine dispute simply by alleging that a dispute exists.. Nicholas Acoustics and Specialty Co. v. H & M Construction Co., 695 F.2d 839, 844 (5th Cir.1983). “In fact, unsupported allegations or affidavits setting forth 'ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision American Corp., 754 F.2d 1212 (5th Cir. 1985). Once the movant shows the court that it is entitled to summary judgment as a matter of law, the burden shifts to the resisting party to show why summary judgment is not proper. Id. The non-movant is then obligated to present competent evidence setting forth specific facts to illustrate the existence of a genuine issue of material fact for trial. Id. See Miles v. American Telephone & Telegraph Co., 703 F.2d 193, 197 (5th Cir.1983). This the plaintiff has failed to do.

It is clear from a reading of plaintiff’s submitted affidavit that the plaintiff is attempting to escape the effects of the “deemer clause”. The “deemer clause” protects employee benefits plans by preemption of state laws regulating such plans while laws regulating an insurance company or insurance policy purchased from an insurance company are saved from pre-emption. The characterization of LOCA as an insurance company by the plaintiff attempts to save the plaintiff’s employee benefit plan from pre-emption. The Court cannot accept such a characterization. The opposing affidavits establish that LOCA is not an insurance company but is a self-funded, self-insured, trust established under an employee benefit plan. As such, the plan falls squarely within the language of the deemer clause. The fact that there is a “stop loss” policy protecting the trust from catastrophic loss does not change this result. The trust was not insured within the meaning of the deemer clause. In any case, the “stop loss” insured is not a party to this action, nor is the plaintiff in privity with the “stop loss” insurer. The Court therefore holds that the plaintiff’s common law causes of action are pre-empted by ERISA. 29 U.S.C. § 1144(b)(2)(B). Metropolitan Life Ins. Co. v. Massachusetts, — U.S. —, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985); Dedeaux v. Pilot Life Ins. Co., 770 F.2d 1311 (5th Cir.1985).

In conclusion, the Court grants partial summary judgment and holds that the plaintiff is not entitled to extra-contractual damages under his ERISA claim and that plaintiff’s Mississippi common law causes of action are pre-empted by ERISA.

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

      . All statutory citations hereinafter refer to Title 29 of the United States Code unless otherwise indicated.

      . The court in Dedeaux listed the methods by which an employer could create or "fund" employee welfare benefit plans. See 29 U.S.C. § 1002(1).
      The employer may create or "fund” these plans in any one of three ways: (1) the employer absorbs the entire risk of loss, thereby becoming a self-insurer, (2) the employer purchases a group insurance policy from a commercial insurance company, or (3) the employer self-insures to a certain monetary amount and purchases from an insurance company a so-called "stop loss” policy to cover any claim over that amount.

        Dedeaux, supra, 1313. Benton Casing Service used the third manner of funding the plan.


author: GOETTEL, District Judge:

text:
    Edna H. SOBEL, M.D., and Bella C. Clu-tario, M.D., on behalf of themselves and other professional faculty members employed by the Defendant, Yeshiva University, similarly situated, Plaintiffs, and Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. YESHIVA UNIVERSITY, Defendant.
    No. 75 Civ. 2232 (GLG).
    United States District Court, S.D. New York.
    Oct. 9, 1985.

      Specter & Buchwach, P.C., Howard A. Specter, Michael D. Buchwach, Pittsburgh (Berger, Kapetan, Malakoff & Meyers, P.C. by Michael P. Malakoff, Pittsburgh, of counsel), for plaintiffs and the class.
    Bonnie P. Josephs, New York City, local counsel for plaintiffs and EEOC.
    E.E.O.C., Johnny J. Butler, Acting Gen. Counsel, James N. Finney, Director Systemic Program, Leroy T. Jenkins, Jr., Director, LEC, Ronald L. Oleson, Supervisory Trial Atty., Robert B. Harwin, Trial Atty., Washington, D.C., for plaintiff-intervenor.
    Sidney Schütz and Sive, Paget & Riesel, P.C., New York City (Daniel Riesel, Mark A. Chertok, Lawrence R. Sandak, Lawrence A. Goldberg, of counsel), for defendant.
   OPINION

GOETTEL, District Judge:

This seemingly interminable Title VII class action having finally been concluded, the Court is now confronted with motions by both the plaintiffs and the defendant for attorneys’ fees. For the reasons stated below, we conclude that neither party should be awarded attorneys’ fees.

Background

This action was filed May 9,1975, by two female physicians employed at the Albert Einstein College of Medicine (“AECOM”). They asserted that they, and all similarly situated women employees of AECOM, had been discriminated against on the basis of sex, and thereby received inferior treatment with respect to salary increases, promotions, pensions, and other fringe benefits. The plaintiffs’ original pension claim was that, since the salaries of the plaintiffs were lower, the contributions made by the defendant employer based upon those salaries, and the benefits to be received, were, accordingly, lower. On May 31, 1977, this Court allowed the Equal Employment Opportunity Commission (“EEOC”) to intervene. On September 26, 1979, we certified the plaintiff class.

In 1979, the defendant moved for summary judgment, asserting that the named plaintiffs had failed to prove any personal claims of discrimination. In opposing that motion, the plaintiffs varied their original pension claim, citing Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). In Manhart, the Supreme Court had recently held that requiring female employees to make larger contributions to a pension fund than did their male counterparts (in view of the greater average longevity of females) in order to receive the same retirement benefits, violated Title VII. Relying on Manhart, the plaintiffs asserted that the use of sex-segregated mortality tables to calculate the amount of pension benefits paid on retirement was discriminatory. Although different from the plaintiffs’ original pension claim, this Court allowed the revised claim to stand, Sobel v. Yeshiva University, 477 F.Supp. 1161, 1165 n. 3 (S.D.N.Y.1979), and denied the defendant’s motion, noting that “questions of fact exist which preclude the granting of summary judgment.” Id. at 1167.

The parties completed discovery and prepared extensive statistical reports regarding the alleged discrimination. On June 24, 1984, after a three-week bench trial, this Court issued its findings. Sobel v. Yeshiva University, 566 F.Supp. 1166. The defendant prevailed on all but the pension claim, on which we reserved decision because of the developing case law following Man-hart, supra. Id. at 1192. Two circuit court decisions were then on appeal to the Supreme Court. See Spirt v. Teachers Insurance & Annuity Association, 691 F.2d 1054 (2d Cir.), petition for cert. denied, 459 U.S. 1013,103 S.Ct. 371, 74 L.Ed.2d 506 (1982); Norris v. Arizona Governing Committee for Tax Deferred Annuity, 671 F.2d 330 (9th Cir.), cert. granted, 459 U.S. 904, 103 S.Ct. 205, 74 L.Ed.2d 164 (1982). These cases indicated that an employer’s use of sex-segregated mortality tables in an employee pension plan was discriminatory.

The parties attempted to agree upon a remedy for the pension claim but were unable to do so until the eve of a scheduled trial on that issue. Devising a remedy for the discrimination in the AECOM plan was complicated by the fact that it was administered by a private insurer, not a party to the litigation. Ultimately, the parties agreed on changes in the pension plan acceptable to the insurer. All claims in suit having been resolved, each party now moves for its attorney’s fees.

The Motions for Attorneys’ Fees

The plaintiffs move for an award of attorneys’ fees pursuant to 42 U.S.C. § 2000e-5(k) (1982), which provides that “the court, in its discretion, may allow the prevailing party, ... a reasonable attorney’s fees as part of the costs.” Both the plaintiffs’ original counsel and successor counsel have filed motions for their fees. The parties have submitted voluminous papers in support of, and in opposition to, each application. The flood of litigation has not, however, stopped there. The defendant has filed a similar motion, claiming that it, rather than the plaintiffs, is the prevailing party and should be awarded an attorney’s fee and costs. Again, the moving and opposition papers are voluminous. Since both parties claim to be the “prevailing party,” this Court is faced with a perplexing decision. Should the plaintiffs, having prevailed through settlement on one of their claims (albeit a claim not originally asserted but successful because the case law changed during the long pendency of this action), be awarded an attorney’s fee? If so, should an award be made to plaintiffs’ original or successor counsel, or both, and in what amount? On the other hand, should the defendant, who prevailed on all other claims in this action, be awarded an attorney’s fee?

1. The Motions by the Plaintiffs’ Counsel

Plaintiffs’ original counsel, Bonnie Josephs, seeks $50,000, pursuant to 42 U.S.C. § 2000e-5(k), for her services in litigating the pension discrimination issue on which the plaintiffs ultimately prevailed. She first asserted this claim in opposing the defendant’s motion for summary judgment. The Court deferred ruling on the pension claim while Norris, supra, was pending before the Supreme Court. The Norris decision, see supra note 2, made clear the need for a change in the pension tables, and the remedy for the pension claim was ultimately settled. Josephs asserts that she conducted discovery that highlighted the disparity between pension benefits paid by the defendant to the plaintiffs and those paid to similarly situated males. Although she did not represent the plaintiffs at trial, she participated in the settlement of the pension claim.

Plaintiffs’ successor counsel, Specter & Buchwach (“S & B”) seek an award of $35,000 for attorneys’ fees. They assert that, since the plaintiffs prevailed on a significant aspect of their claims, S & B is entitled to a reasonable attorney’s fee award. They seek compensation for time spent trying the pension issue, preparing that issue for trial, and settling the damages for that claim. Both Josephs and S & B also seek compensation for time spent preparing these motions for attorneys’ fees.

The defendant opposes both applications on a number of grounds. It argues that the plaintiffs have not met their burden of establishing entitlement to an award. Since the plaintiffs may not receive an award for non-prevailing claims, the defendant urges the Court to deny the plaintiffs’ applications because their counsels’ records do not clearly distinguish between time spent on successful and unsuccessful claims. The defendant further asserts that the plaintiffs are entitled to no award of attorneys’ fees because special circumstances surrounding the pension issue preclude such an award.

2. The Defendant’s Motion

The defendant seeks an attorney’s fee award of $1,225,042, pursuant to 42 U.S.C. § 2000e-5(k), and an award for costs and experts’ fees totaling an additional sum of almost $600,000, pursuant to Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920. The defendant asserts that it is the prevailing party, despite the ultimate settlement of the pension claim in the plaintiffs’ favor. It asserts that the plaintiffs’ claims were groundless from their inception, and that the plaintiffs acted in bad faith in continuing this litigation after it became clear their claims were meritless. Alternatively, the defendant claims it is entitled to an award pursuant to Fed.R.Civ.P. 16 and 37 as a sanction for the vexatious behavior of the plaintiffs in this action. The defendant asserts that the plaintiffs and intervenor EEOC repeatedly violated discovery and other pretrial orders and forced the defendant to prepare defenses for trial on numerous frivolous claims which the plaintiffs withdrew at the last minute.

The plaintiffs contend that they acted reasonably in filing and pursuing their discrimination claims. They state that the EEOC’s intervention confirmed the reasonableness of that belief as did the Court’s favorable rulings on their class certification motion and the defendant’s motions to dismiss and for summary judgment. They assert that the defendant is not entitled to an award of its fees and costs merely because the plaintiffs did not ultimately prevail on all their claims.

Standards for Awarding Attorneys’ Fees

Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) (1982), permits a district court, in its discretion, to award a reasonable attorney’s fee to the prevailing party in federal civil rights actions. Plaintiffs who bring suits under the Civil Rights Act are considered private attorneys general, acting to advance public interests. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). A prevailing plaintiff vindicates federal law and policy and any award made is against a violator of federal law. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978). Therefore, the standard for awarding fees to prevailing plaintiffs is very generous. A successful civil rights plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park, supra, 390 U.S. at 402, 88 S.Ct. at 966; see Carrion v. Yeshiva University, 535 F.2d 722, 727 (2d Cir.1976). Civil rights plaintiffs need not prevail on every issue to be considered the prevailing party. Rather, they need only “ ‘succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978); Plum-mer v. Chemical Bank, 592 F.Supp. 1168, 1170 (S.D.N.Y.1984).

Section 706(k) speaks not of a prevailing plaintiff, but rather of a prevailing party. Thus, it is also possible for a prevailing defendant to receive an attorney’s fee award.' However, the convincing rationale for awarding fees to prevailing plaintiffs does not apply to prevailing defendants. Christiansburg, supra, 434 U.S. at 418-19, 98 S.Ct. at 698-99. The burden upon a prevailing defendant to justify an award of fees is, therefore, significantly greater than that on a prevailing plaintiff. Yet, a prevailing defendant need not go so far as to prove that the plaintiff brought the suit in bad faith. “[A] district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Id. at 421, 98 S.Ct. at 700.

Application of Standard to Instant Motions

The threshold question is who is the prevailing party. Although the defendant prevailed at trial, the final settlement of the severed pension issue produced substantial benefits for the plaintiff class. However, the plaintiffs success was due primarily to a fortuitous change in the case law years after the action was commenced. It is thus questionable whether either party can truly be deemed the “prevailing party.” Nevertheless, we believe that, even accepting each party’s claim to the status of partially prevailing party, under the applicable standards, neither is entitled to an award of attorneys’ fees.

1. The Defendant’s Claim

Regardless of the defendant’s success on those claims decided at trial, the final settlement of the severed pension claim substantially benefitted the plaintiff class. At best, the defendant is a partially prevailing party. The defendant has not cited, nor has this Court found, any cases awarding fees to a partially prevailing civil rights defendant. In view of the strong public policy favoring civil rights plaintiffs, we do not believe it appropriate to grant fees to a partially prevailing defendant.

Even if a defendant has prevailed in every respect, “a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Christiansburg, supra, 434 U.S. at 422, 98 S.Ct. at 700. It does not follow that, “because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Id. Although the trial evidence ultimately showed no pay discrimination by the defendant after 1972 (when Title VII became applicable to universities), the class representatives (who had been employed prior to 1972) earnestly believed they had been, and were being, underpaid. In reviewing the long history of this case, we cannot conclude that the plaintiffs’ claims were “frivolous, unreasonable, or groundless.” Nor can it be said that the plaintiffs continued to litigate claims that became meritless. In fact, the plaintiffs dropped several of their claims prior to trial when discovery did not substantiate them. The defendant has not met the Christiansburg standard and its motion for an award of fees must be denied.

The defendant alternatively requests an award of fees and costs pursuant to Fed.R.Civ.P. 16 and 37 as sanctions against the plaintiffs’ allegedly vexatious conduct. This application is also denied. Both parties were equally responsible for the long delays and protracted battles over discovery that marred this litigation.

2. The Plaintiffs’ Claims

Although the plaintiffs failed at trial to prove their salary and promotion discrimination claims, the pension discrimination claim was ultimately settled in their favor. They did, therefore, partially prevail and may be awarded an attorney’s fee. See Hensley v. Eckerhart, supra, 461 U.S. at 433,103 S.Ct. at 1939. The district court is given great discretion in granting such an award. However, “the court’s discretion to deny a fee award to a prevailing plaintiff is narrow. Absent ‘special circumstances,’ fees should be awarded.” New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68,100 S.Ct. 2024, 2033, 64 L.Ed.2d 723 (1980) (emphasis added) (citing Newman v. Piggie Park, supra, 390 U.S. at 402, 88 S.Ct. at 966; Christiansberg, supra, 434 U.S. at 416-17, 98 S.Ct. at 697-98). This Court finds that special circumstances warrant denial of both Ms. Josephs’ and S & B’s applications for attorney’s fees.

The plaintiffs did not initially raise the pension issue on which they ultimately prevailed. They raised this claim only after the Supreme Court held in Manhart that pension benefits based on sex-segregated mortality tables were discriminatory. Essentially, the plaintiffs stumbled upon a change in the law that supported their revised pension discrimination claims. Ms. Josephs asserts that the plaintiffs’ original discrimination claims encompassed an objection to the use of gender-based mortality tables in determining pension benefits. She even annexes a letter from a faculty women’s rights committee dated November 15, 1974, noting this claim. Josephs’ Reply Affidavit, Exhibit E. Unfortunately, this assertion does little to justify awarding her attorney’s fees. If the plaintiffs intended to assert a claim of discrimination based on the use of sex-segregated mortality tables in calculating pension benefits, they should have raised it in their complaint, not four years later in opposing a motion for summary judgment.

The plaintiffs’ later counsel, S & B, was even more of a bystander in the pension issue. The new pension claim was raised, following Manhart, before S & B came into this action. Several cases involving the application of Manhart had already been decided by circuit courts and were awaiting review by the Supreme Court. See supra p. 841. These plaintiffs had merely to await the resolution of those cases.

When Manhart revealed the problem of discrimination based on sex-segregated mortality tables in determining pensions, the defendant made substantial efforts to reach a settlement with plaintiffs on their pension claim. The plaintiffs dragged out the negotiations and did little to facilitate settlement. In light of the fortuitous nature of the plaintiffs’ successful pension claim, the enormous legal fees of the defendant in successfully defending all other claims, and the Court’s conclusion that the defendant’s counsel should not be reimbursed, it is our view that “special circumstances would render ... an award [to plaintiffs] unjust.” Newman v. Piggie Park, supra, 390 U.S. at 402, 88 S.Ct. at 966.

Conclusion

The motions of plaintiffs’ counsel and defendant’s counsel for an award of attorney’s fees are denied. In view of this decision, each party shall bear its own expenses for these motions.

SO ORDERED.

      . AECOM is the medical school division of defendant Yeshiva University.

      . The Supreme Court eventually affirmed Norris, 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983), while vacating and remanding Spirt for reconsideration in light of Norris.

      . In Manhart, the discrimination stemmed from requiring greater pension contributions by women to receive the same retirement benefits as men. The AECOM plan required equal contributions from both men and women, but paid smaller monthly annuities to women based on the statistical expectation that women will live longer. Another distinction between the pension plan in Manhart and the AECOM plan is that the latter was administered by a private insurance company rather than a governmental entity, as in Manhart (and Norris).

      . No objections to the changes in the pension plan were received from the plaintiff class. However, a number of retired male professors argued that the changes should be retroactive to afford them the opportunity to take advantage of a new option offered. (Their objections were not considered since they were not a party to this litigation.)

      . The Supreme Court has said that "[a] request for attorney’s fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Unfortunately, the parties to this action have not heeded this pronouncement.

      . Josephs removed herself as plaintiffs’ counsel prior to trial, but remained as local counsel for plaintiffs' successor counsel, Specter & Bu-chwach, and for plaintiff-intervenor, EEOC.

      . The defendant has not sought any fees or expenses associated with the plaintiffs’ prevailing pension claim.

      . The Supreme Court went on to note that
      assessing attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.

        Christiansburg, supra, 434 U.S. at 422, 98 S.Ct. at 700.

      . When each party has prevailed on some claim or defense, the district court has broad discretion in taxing costs. Johnson v. Nordstrom-Lar-penteur Agency, Inc., 623 F.2d 1279, 1282 (8th Cir.1980). Since we conclude that no fee award will be made to the defendant, its application for costs pursuant to Fed.R.Civ.P. 54(d) is also denied.

      . Our decision to deny the defendant’s motion makes it unnecessary to consider any apportionment as between the plaintiffs and the EEOC, or whether a different standard exists for assessing fees and costs against the EEOC as an inter-venor.

      . The defendant received a $5,000 award in 1980 because of the plaintiffs' and the EEOC’s conduct in delaying discovery. For the defendant to seek additional sanctions at this late date is inappropriate.

      . Procedually, this was improper; a motion to amend the complaint would have been appropriate. However, this Court believed that the general allegations of discrimination as to pension were sufficiently "pleaded and made the subject of discovery so that summary disposition [wa]s inappropriate.” Sobel v. Yeshiva University, supra, 477 F.Supp. 1161, 1165 n. 3 (S.D. N.Y.1979).

      . It must be noted that defendant’s position on this issue was complicated by the fact that the AECOM pension plan was administered not by the defendant, but by a private insurance company. Still, the defendant did what it could to get its insurer to agree to change the pension program and ultimately achieved its goal.


author: CHARLES R. RICHEY, District Judge.

text:
    NAACP, JEFFERSON COUNTY BRANCH, et al., Plaintiffs, v. The Honorable William E. BROCK, Secretary, United States Department of Labor, in His Official Capacity, et al., Defendants.
    Civ. A. No. 82-2315.
    United States District Court, District of Columbia.
    Oct. 10, 1985.

      Thomas D. Goldberg, Ronald A. Stern, and Phillip A. Lacovara, of Hughes, Hubbard & Reed, Washington, D.C., for plaintiffs.
    Harry L. Sheinfeld, Counsel for Litigation, U.S. Dept, of Labor, and Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., and Royce C. Lamberth, Asst. U.S. Atty., and R. Craig Lawrence, Asst. U.S. Atty., Washington, D.C., for defendants; William H. DuRoss, III, Associate Sol. for Employment and Training, and Jeffrey A. Henne-muth, Atty., Office of the Sol., U.S. Dept, of Labor, Washington, D.C., of counsel.
   OPINION

CHARLES R. RICHEY, District Judge.

INTRODUCTION

The Court has before it plaintiffs’ application for two show cause orders, the accompanying memoranda in support of the application, and the defendant, Department of Labor’s (DOL) opposition thereto. Although the Court signed a final order in this longstanding case on August 15, 1985, recent actions by two non-party West Virginia apple growers and suits filed in the District Court for the Northern District of West Virginia have precipitated plaintiffs’ applications. Tri-County Growers, Inc. v. Brock, Civ. No. 85-38-M; Homer Feller, d/b/a Mount Level Orchards and Farms, Civ. No. 85-37-M.

BACKGROUND AND FACTS

Plaintiffs are a nationwide class of migrant farm workers, who initially filed suit against the Secretary of Labor and the DOL, claiming that the DOL had violated its own regulations which governed the labor certification process for the temporary employment of aliens in the United States. Plaintiffs argued that the DOL had not required certain West Virginia apple growers to increase their piece rates (amount paid per box of apples picked) to match the adverse effect rate (AER is the minimum wage that employers must pay both foreign and domestic workers). By not raising piece rates, the growers forced the farm workers to increase their productivity in order to earn the AER. Furthermore, plaintiffs asserted that the DOL had not established an AER for West Virginia in 1982.

In September, 1982, this Court granted summary judgment for the plaintiffs and enjoined the defendants frorh granting temporary labor certification to growers who did not offer the proper piece rate based on the AER and the standard productivity rate of 80 bushels a day. Defendants also were ordered to use rulemaking procedures to establish the 1982 AERs for certain states. NAACP, Jefferson County Branch, v. Donovan (NAACP I), 558 F.Supp. 218, 225-26 (D.D.C.1982). In 1983, the DOL published a final rule, which utilized a new methodology for determining the AERs. In subsequent litigation, the Court, again granted summary judgment for the plaintiffs and ordered the DOL to establish piece rates in West Virginia in conformance with its new AER methodology. The Court further ordered that the defendants gather information and publish a rule for determining the AER in all affected states. Finally, the Court enjoined defendants from granting temporary labor certification to any employer who did not comply with the adjusted piece rate. NAACP, Jefferson County Branch, v. Donovan (NAACP II), 566 F.Supp. 1202, 1209-10 (D.D.C.1983).

The DOL published its final rule amending 20 C.F.R. § 655.207(c) on September 2, 1985. However, this Court, in accordance with a mandate from the Court of Appeals, entered its final order and judgment vacating the amendments and reinstating 20 C.F.R. § 655.207(c) (1978) as published on March 10, 1978, and as interpreted by the Court in NAACP I and NAACP II, until amended or revoked by proper rulemaking procedures. NAACP, Jefferson County Branch, v. Brock, No. 82-2315 (D.D.C. Aug. 14, 1985) (final order and judgment).

Two weeks after the entry of the Final Order and Judgment, on the eve of the apple harvesting season, two West Virginia apple growers, Tri-County Growers, Inc., and Mount Level Orchards and Farms, filed suit in the Northern District of West Virginia seeking an order reversing the DOL’s denial of labor certifications for temporary farm workers due to the growers’ refusal to pay workers the fifty-two cents per box piece rate. The growers also applied for a temporary restraining order enjoining the DOL’s denial of labor certification of nearly 600 temporary foreign workers. Despite the DOL’s argument that if the TRO were granted, it would be faced with conflicting orders from two different district courts, the West Virginia court granted the growers’ TRO on the condition that the growers either deposit the difference between the piece rate paid and the piece rate required under the DOL regulations or provide irrevocable bank letters of credit to secure the eleven cents-per-box difference between the required rate and that actually paid by the growers.

The DOL subsequently filed a motion for stay of the district court’s order with the Fourth Circuit Court of Appeals. After argument before a single judge of the Fourth Circuit, the motion was denied. The DOL did not seek further review of the orders either by a full panel of the Fourth Circuit or by application to a Supreme Court Justice. The next day, the DOL complied with the West Virginia district court’s order by granting certification to the two plaintiff-growers even though their piece rates were well below the published standard. The District Court for the Northern District of West Virginia has scheduled a hearing on the merits for early October.

Plaintiffs are now back before this Court requesting that it issue two orders to show cause. One would order the DOL to show cause why it should not be held in civil contempt of court for its failure to follow this Court’s orders. Should a finding of contempt be made, plaintiffs ask that defendants be required to pay a fine to reimburse plaintiffs for their lost wages. The other order desired by plaintiffs is directed at the West Virginia growers, Tri-County and Mount Level, to show cause why they should not be directed to raise their piece rates immediately to the fifty-two cents per box rate, and further, enjoined from prosecuting their actions in the Northern District of West Virginia.

After consideration of the briefs submitted by counsel and oral argument before it, the Court finds that for the reasons stated herein, both Applications for Orders to Show Cause shall be denied.

ANALYSIS

The DOL attempted to comply in good faith with this Court’s Orders in NAACP-II, and therefore, is not in contempt.

It is an established principle of law that once a court issues an injunction, those persons who are subject to it are to obey the terms of that order as long as it remains in effect. Even proper objections to the injunctive order do not provide sufficient grounds for disobeying it. GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386, 100 S.Ct. 1194, 1201, 63 L.Ed.2d 467 (1980). Paragraph eight of this Court’s Order in NAACP II enjoined the DOL from granting temporary labor certification to any employer who did not comply with the applicable piece rate standard. The purpose of this Order was to enable workers to earn the current AER without having to increase their productivity rate. NAACP II, 566 F.Supp. at 1210. The Court, after issuing this lawful order, has the inherent power to enforce compliance through civil contempt sanctions. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966).

Before issuing the civil sanctions that plaintiffs have requested, the court must conduct a three-step analysis. First, it must decide if the orders were specific enough to create a “predicate for contempt.” Aero Corp. v. Department of the Navy, 558 F.Supp. 404, 418 (D.D.C.1983). Second, if the terms establish the requisite predicate, the Court must consider whether in light of the evidence and any mitigating factors now before it, the DOL can be held in civil contempt for its disobedience. Third, if the DOL is in contempt, then the Court must determine whether the defendants come within the ambit of the sovereign immunity doctrine and, as a consequence, are immune from the civil contempt sanction of paying the compensatory fine. In brief, the Court finds that the terms of its June 28, 1983, Order in NAACP II are sufficiently specific so that the DOL was well aware of what actions it was expected to take and which others the Order proscribed. Moreover, the DOL’s actions to date constitute good faith efforts on its part to comply with the Court’s Order. Because of this finding of good faith, the DOL is adjudged to not be in contempt of court. Consequently, it is unnecessary to decide whether the Court has the power to order the DOL to pay a compensatory fine.

The Court’s Order of June 28, 1983, is specific enough to form the necessary predicate for contempt. In that document, the Court sets forth its orders in eight separate paragraphs. The eighth paragraph is of specific concern in this case. Its terms, as indicated above, clearly spell out what actions the defendants are enjoined from taking. Within the paragraph the Court details what the employer-growers must do to comply with the DOL regulation and which productivity rates the DOL should apply to determine the appropriate piece rate. One can draw but a single conclusion from this paragraph: the DOL cannot grant temporary labor certification if the applicant is not paying the proper piece rate.

Having established that the Order contains the requisite specificity, the Court must focus on whether the DOL should be held in contempt for disobeying that Order. Here plaintiffs seek civil rather than criminal contempt sanctions. The differences in burden of proof and factors for the Court to consider are well documented in the case law. See, e.g., NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1183-87 (D.C.Cir.1981); see also 11 C. Wright & A. Miller Federal Practice and Procedure § 2960 (1973). In civil contemnor, the moving party has. the burden of proving that the alleged contemnor has violated the Court’s Order by clear and convincing evidence. Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 626 F.2d 1029, 1031 (D.C.Cir.1980). The violation need not be intentional or willful; in fact, “the intent of the recalcitrant party is irrelevant.” Blevins Popcorn Co., 659 F.2d at 1184; see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2960 (1973). However, the courts of this circuit have considered good faith compliance efforts or a party’s inability to comply with a court’s orders as defenses which call for mitigation of contempt sanctions. See SEC v. Ormont Drug & Chem. Co., 739 F.2d 654, 656-57 (D.C.Cir.1984); WMATA v. Amalgamated Transit Union Local Division 689, 531 F.2d 617, 621 (D.C.Cir. 1976); Natural Resources Defense Counsel, Inc. v. Train, 510 F.2d 692, 713 (D.C. Cir.1975); Brotherhood of Locomotive Firemen & Enginemen v. Bangor & A.R. Co., 380 F.2d 570, 581 (D.C.Cir.), cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967).

There is no question but that the DOL’s granting of temporary labor certification to Tri-County and Mount Level violates this Court’s Order. The issues that remain are whether the DOL has made good faith efforts to comply or whether they were unable to comply with the NAACP II Order. The Court notes that under a good faith analysis is one which calls for the Court to balance the violating party’s rights with the need to prevent that party from “flouting the law.” Maggio v. Zeitz, 333 U.S. 56, 77, 68 S.Ct. 401, 412, 92 L.Ed. 476 (1948). Thus, “some attempts” at compliance are not enough to pass the close scrutiny of the alleged contemnor’s claims. Ormont Drug & Chem. Co., 739 F.2d at 656; Brotherhood of Locomotive Firemen & Enginemen, 380 F.2d at 582.

The DOL finds itself in an unenviable position, resting on the horns of a dilemma. Plaintiffs argue that the DOL could have done more to remove itself from this predicament. They point out that the DOL could have chosen to comply with this Court’s Order, and thus violate the Order of the West Virginia district court, or the DOL could have sought further review before a full panel of Fourth Circuit judges or a Supreme Court justice. The first choice, while it may be supported by the Sylvania decision, does not eliminate the possibility of the DOL facing contempt charges and sanctions in the Northern District of West Virginia. In fact, the DOL attorneys presented the Sylvania argument to both courts in West Virginia, but obviously neither found it persuasive. The second choice was one that the DOL attorneys considered but decided against in light of the expedited hearing on the merits and the conditions they were able to convince the Court to attach to the TRO. Certainly, the fact that the DOL had a choice at all precludes this Court from finding that they were “powerless to comply” with its Order. Ormont Drug & Chem. Co., 739 F.2d at 656. But, the DOL did make substantial efforts to ensure that its regulations would be followed, and that the workers rights pursuant to those regulations would be protected as much as possible under the circumstances. The provisions of the West Virginia court’s Order requiring the growers to establish an escrow account or provide irrevocable letters of credit are the direct result of the DOL's arguments before that court. Throughout the litigation, the DOL has communicated and discussed strategy with plaintiffs’ counsel, and further, the DOL still has the opportunity to litigate this case on the merits, which it has assured the Court it will do vigorously. These actions, in this particular situation, where the DOL is faced with irreconcilable orders from two federal district courts, are convincing proof that the DOL has made good faith efforts to comply with this Court’s Orders.

While a good faith analysis requires a close inquiry into the defendants actions, it is not the Court’s role to examine every tactical decision made by the DOL in the current litigation. Such an inquiry would be likely to lead to a court’s substituting its judgment, in hindsight, for that of the attorneys. While the plaintiffs and the Court may disagree with some of the DOL’s decisions in this litigation, the record, when considered as a whole, reflects a good faith effort on the part of the DOL to comply with the letter and spirit of the NAACP II order. Therefore, the Court exercises its discretion and finds that the DOL is not in contempt of that Order.

For these reasons, the Court must deny the plaintiffs’ Application for an Order to Show Cause against the DOL. In so doing, the Court is aware of the plaintiffs’ concern that without the threat of sanctions, the DOL will not offer a zealous defense at the upcoming hearing on the merits. While the Court believes that the DOL will vigorously argue its case, it will allow the plaintiffs to reopen the contempt issue should evidence showing the DOL’s lack of good faith arise.

The Court has the legal authority to issue an order to show cause against certain nonparty West Virginia growers, but practical considerations and principles of comity override bringing the parties before it at this time.

The Court finds itself on a path traveled once before. Two years ago, apple growers in the Western District of Virginia filed a suit similar to the one currently before the District Court for the Northern District of West Virginia. In the previous case, the Virginia district court issued a TRO and scheduled the matter to be heard on its merits. This Court, upon application by the plaintiffs, entered a show cause order requiring the growers to appear and show cause why they should not be enjoined from further prosecuting their action in Virginia or litigating other actions inconsistent with this Court’s rulings. Subsequently, this Court, with counsel for the plaintiffs and the government concurring, ordered the growers to terminate their litigation in the Western District of Virginia. The DOL’s publication of an amended regulation in September 1983 and the subsequent litigation relating to this Court’s Order suspending the amendment rendered the issue moot.

Plaintiffs now seek to have the Court enter an order against the Tri-County and Mount Level, which would require them to show cause why they should not pay all workers a minimum piece rate of fifty-two cents per box of apples picked, and further, be enjoined from prosecuting their cause of action in the West Virginia district court. While the Court agrees with plaintiffs that it has the authority to issue the requested order to show cause, practical considerations and principles of comity give this Court reasons to deny the plaintiffs’ application at this time.

Under the All Writs Act, 28 U.S.C. § 1651(a) (1976), the Court “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Id. (emphasis added). Thus, it is within this Court’s inherent discretionary power to issue the order that plaintiffs have requested. Cf. SEC v. G.C. George Securities, Inc., 637 F.2d 685, 687 (9th Cir.1981). Two pertinent questions the Court must consider in deciding whether to issue the order are whether it can subject the growers, as nonparties to the litigation that was before it, to the injunction requested by plaintiffs and whether the Court has personal jurisdiction over them. In short, the answer to both questions is “yes.”

The case law provides support for this Court’s interpretation that the All Writs Act grants the district courts the power to issue injunctions against certain nonparties. The Supreme Court in Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), held that the nonparty defendant-fishing associations were subject to an injunction the federal district court had issued to protect a series of its orders. Id. at 692 n. 32, 99 S.Ct. at 3078 n. 32. In United States v. Hall, 472 F.2d 261 (5th Cir.1972), which the Supreme Court approvingly cited in Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, the Fifth Circuit upheld a district court’s injunction against third parties preventing them from causing and abetting racial unrest in certain Jacksonville public schools which the court had ordered desegregated. Finally, this Circuit, in Environmental Defense Fund v. EPA, 485 F.2d 780 (D.C.Cir.1973), issued an injunction preventing nonparty intervenors in an action before the federal district court for the Northern District of Mississippi from further prosecuting that suit because the issue was properly before Court of Appeals. While none of these cases are wholly on point with the one currently before the Court, they do support the proposition that the Court can use its inherent powers to protect its final decrees, especially when the nonparty’s actions threaten the adjudicated public rights of a party to the litigation. Without a doubt, Tri-County and Mount Level’s refusal to pay the fifty-two cent piece rate to its migrant farm workers is a direct violation of their rights as adjudicated by this Court. Thus, it is within this Court’s discretion to order them to appear before it and, if need be, enjoin their activities.

The issue of the Court’s personal jurisdiction over the nonparties was raised by the growers in 1983 when this Court issued show cause orders. As it was then, the law, today, is clear. Under Fed.R.Civ.P. 4(f) and Fed.R.Civ.P. 71, the nonparties can be served if they are within 100 miles of this courthouse. Plaintiffs’ counsel represents to the Court that both growers are within that range. If they are not, jurisdiction is still proper under the precedent established by the Court of Appeals in Environmental Defense Fund v. EPA, 485 F.2d 780 (D.C.Cir.1973), where, as was previously noted, nonparties in federal district court in Mississippi were enjoined from further prosecution by the Court of Appeals for the District of Columbia.

Despite this Court’s inherent power to grant relief against the West Virginia growers, principles of comity and practical considerations advise against such steps. The Court of Appeals for this circuit has stated, “Considerations of comity and orderly administration of justice dictate that two courts of equal authority should not hear the same case simultaneously.” WMATA v. Ragonese, 617 F.2d 828, 830 (D.C.Cir.1980). This reasoning is relevant to the present case in two respects. First, since a final judgment has been entered in the case before this Court, there is no simultaneous litigation in two co-equal tribunals. Furthermore, the case in West Virginia is not the same one as was before this Court. Second, bringing the apple growers, plaintiffs in the West Virginia litigation, before this Court and possibly entering an injunctive order against them would seem to violate the spirit of the Court of Appeals’ reasoning in Ragonese. In essence, the growers would be asked to litigate in two federal courts simultaneously with the possible result that one court would enjoin them from continuing to litigate in the other. This puzzling situation would not be in the interests of the orderly administration of justice, and such use of the Court’s powers should be reserved for extraordinary circumstances. See Bergh v. Washington, 535 F.2d 505, 507 (9th Cir.), cert. denied, 429 U.S. 921, 97 S.Ct. 318, 30 L.Ed.2d 288 (1976).

The Court is mindful of the fact that a hearing on the merits before the district court in West Virginia is scheduled for this week. Moreover, that court has indicated to DOL’s counsel that it anticipates resolving the matter by mid-October. Given the realities of this schedule, the Court believes that its further involvement at this time would only serve to delay the fulfillment of the parties’ rights. Because comity interests are advanced when “courts of coordinate ranks are respectful of each other’s orders, as well as careful to avoid hindering each other’s proceedings,” Schauss v. Metals Depository Corp., 757 F.2d 649, 654 (5th Cir.1985), this Court exercises its discretion and denies plaintiffs’ application for a show cause order against the West Virginia apple growers.

ORDER

The Court has before it plaintiffs’ application for two Orders to Show Cause. For the reasons explained in the accompanying Opinion, the Court finds that the Department of Labor has made good faith efforts to comply with this Court’s Order in NAACPII dated June 28, 1983. The Court further finds that while it has the authority to bring the nonparty West Virginia growers, Tri-County and Mount Level, before it and order then to show cause why they should not be directed to raise their piece rates immediately to fifty-two cents per box, and further, enjoined from prosecuting their causes of action in the Northern District of West Virginia, it is in the interests of comity and justice for all the parties involved that it deny the plaintiffs’ application for this Order to Show Cause.

Accordingly, it is, by the Court, this 10th day of October, 1985, hereby

ORDERED that the plaintiffs’ Application for two Orders to Show Cause be denied.

      . The certified class in the original suit filed in this Court consisted of the NAACP, a number of named plaintiffs, all farmworkers employed by Ewer Orchards, Mount Level Orchards, and TriCounty Growers at any time during the harvesting seasons of 1980 and 1981, and all United States farmworkers who "intend to seek or are seeking employment in West Virginia for the 1982 harvest season" and whose working conditions or wages were affected adversely by the defendants’ actions. NAACP, Jefferson County Branch v. Donovan, 558 F.Supp. 218, 220 (D.D. C.1982).
      In the second phase of the litigation, thirteen more individual plaintiffs from nine other states and a farmworkers organization joined the original plaintiffs. The United States was joined as a defendant to ensure the availability of the relief requested. NAACP, Jefferson County Branch v. Donovan, 566 F.Supp. 1202, 1204-05 (D.D.C.1983).

      . Tri-County and Mount Level offered workers forty-one cents per box of applies picked. Plaintiffs' Memorandum in Support of their Application for Orders to Show Cause at 5; NAACP, Jefferson County Branch v. Brock, Civ. No. 82-2315 (D.D.C. filed Sept. 10, 1985); see Complaint of Plaintiff at 8, Feller v. Brock, Civ. No. 85-37-M (N.D.W.Va. filed Aug. 27, 1985); Complaint of Plaintiff at 8, Tri-County Growers, Inc. v. Brock, Civ. No. 85-38-M (N.D.W.Va. filed Aug. 27, 1985).

      . The conditions proposed by the DOL and adopted by the District Court for the Northern District of West Virginia closely follow those ordered by this Court over two years ago in this case. See NAACP, Jefferson County Branch v. Donovan, Civ. No. 82-2315 (D.D.C. Sept. 8, 1983) (order suspending effective date of proposed amended rule).

      . Some results were unavoidable once the district court allowed the growers to pay the forty-one cents per box piece rate. For example, the lower piece rate has the effect of depressing wages for other farmworkers in the region.

      . The Court wishes to make it clear to both parties that any further good faith reviews will not be based upon the results reached in West Virginia. Whether or not a party prevails on the merits is not, by itself, an accurate measure of a party’s good faith efforts in litigation.

      . The plaintiffs also ask the Court to order the growers to pay the difference between any wages already paid and the fifty-two cent per box piece rate. Plaintiffs’ Suggested Order to Show Cause, NAACP, Jefferson County Branch v. Brock, Civ. No. 82-2315 (D.D.C. filed Sept. 10, 1985).

      . These dates were communicated to the Court by counsel for DOL during a hearing on this matter on September 23, 1985.