author: PROPST, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. OLIN CORPORATION, Defendant. Floyd WILHOITE, et al., Plaintiffs, v. OLIN CORPORATION, a corporation; and United States of America, Defendants.
    Civ. A. Nos. CV80-PT-5300-NE, CV84-PT-1194-S.
    United States District Court, N.D. Alabama, Northeastern and Southern Division.
    April 4, 1985.

      Fournier J. Gale, III & Frank D. McPhillips, Maynard, Cooper, Frierson & Gale, P.C., Birmingham, Ala., for plaintiffs Wilhoite, et al.
    Kenneth A. Reich, Dept, of Justice, Environmental Enforcement Sect., Washington, D.C., for the U.S.
    G. Lee Garrett, Jr., Hansell, Post, Brandon & Dorsey, Atlanta, Ga., for defendant Olin.
   MEMORANDUM OPINION

PROPST, District Judge.

Olin Corporation (hereinafter referred to as “Olin”) is a Virginia corporation with its principal office and place of business in Connecticut. It is qualified to do business in Alabama. From approximately 1947 to 1971, Olin leased Redstone Arsenal from the United States in order to operate a plant for the manufacture and use of chemicals. Plaintiffs are citizens of the State of Alabama who allege injury from the operation of the chemical plant.

This matter is before the court on a Motion for Summary Judgment filed by Olin on June 11,1984. On July 9, 1979, the first complaint was filed in a line of cases encompassing the subject matter of the instant case. In these cases, which were later consolidated, the State of Alabama and the United States sought injunctive relief to require Olin to eliminate DDT from, and restore the environment in, the vicinity of Redstone Arsenal. In paragraphs 17-20 of the United States’ First Amended Complaint and paragraph A.l of its prayer for relief, the following relief was requested against Olin:

A. Entry of a mandatory permanent injunction requiring Olin to do the following:
1. Take all appropriate and necessary remedial measures to restore the environment at RSA and in the vicinity of RSA including Wheeler Wildlife Refuge and the Tennessee River to its original condition prior to the manufacturing and disposing of DDT at RSA, including removal of DDT wastes and restocking Huntsville Spring Branch, Indian Creek, the Tennessee River and Wheeler National Wildlife Refuge with the fish, birds and other wildlife.

In the prayer for relief in Alabama’s Amended Complaint, it requested that the court:

1. Order Defendant to take, at its own expense, all steps necessary to eliminate the public nuisance created by the presence of DDT pollution in the waters, water bottoms, aquatic life, and wildlife of Huntsville Spring Branch, Indian Creek, the Tennessee River, and the Wheeler Wildlife Refuge.

As part of the resolution of the consolidated DDT cases, Olin, the United States, and Alabama entered into a consent decree. Prior to final approval and entry of the ■consent decree, the settlement of the consolidated cases received widespread publicity throughout the Huntsville-Decatur, Alabama area. The consent decree and related documents were made available for public comment. The Justice Department, as required by 28 C.F.R. § 50.7, announced the proposed settlement on April 15, 1983, in 48 Fed.Reg. 16359 (April 15, 1983). The announcement indicated the public availability of the consent decree and related settlement documents and invited public comment on the proposed settlement for a thirty-day period.

Following the thirty-day comment period, the court held hearings concerning the proposed consent decrees and heard witnesses testify concerning the requirements set forth in the consent decree and its reasonableness. After the hearings, the court entered the consent decree on May 31, 1983.

The consent decree set forth a plan to collect, analyze and evaluate data to develop and implement a remedial program. The plan established a performance standard for the DDT level in certain fish species, required the performance of investigative programs to study fish, in situ sediment, suspended sediment transport, and water characteristics. In addition, Olin was required to develop a remedial program consistent with comprehensive goals and objectives.

Prior to and following entry of the consent decree, Olin began to conduct studies in the area, employed individuals to work on the project, and has expended substantial sums of money in meeting its obligations under the consent decree and proposal. Further, Olin has had meetings with, and has submitted quarterly reports to, the review panel, established by the consent decree, to report its progress.

On January 11, 1983, plaintiffs filed a separate action for damages. In September 1983, plaintiffs first amended their complaint to demand injunctive relief, which was subsequently amended as follows:

[Pjlaintiffs demand preliminary and final injunctive relief to require defendant Olin to remove any and all DDT and other contaminants on and in T.V.A. Property, Huntsville Spring Branch, Indian Creek, Wheeler National Wildlife Refuge, and the Tennessee River, immediately and in no event more than one year after the date of the Court Order and to require such other action by said defendant as the Court shall deem appropriate.

The injunctive facet of the case was severed, transferred to this court, and consolidated with the other Olin cases before the court by order of May 10, 1984.

Olin premises this motion, which is directed solely against the severed injunctive claim, on three arguments:

1. The actions brought by the United States and Alabama in the consolidated DDT cases were parens patriae actions, and the doctrine of res judicata bars the Wilhoite plaintiffs’ injunctive claims.

2. The Whilhoite plaintiffs injunctive claims constitute an impermissible collateral attack on the consent decree entered in the consolidated DDT cases.

3. The Wilhoite plaintiffs’ injunctive claims are untimely and barred by laches.

I

Olin argues that because Alabama and the United States brought a parens patriae action on behalf of its citizens, subsequent suits by individual citizens are barred by res judicata.

In order for res judicata to have a preclusive effect on subsequent actions, the following elements must be met:

(1) that the prior judgment must have been rendered by a court of competent jurisdiction;
(2) that there must have been a final judgment on the merits;
(3) that the parties, or those in privity with them, must be identical in both suits; and
(4) that the same cause of action must be involved in both suits.

Ray v. Tennessee Valley Authority, 677 F.2d 818, 821 (11th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983), quoting Stevenson v. International Paper Co., 516 F.2d 103, 108 (5th Cir.1975).

Plaintiffs cite several cases for the proposition that private plaintiffs are not barred from bringing a private enforcement action even though their interests were purportedly advanced by the United States in previous litigation that resulted in a consent decree, but plaintiffs cite no cases involving a prior parens patriae action. The weight of authority indicates that once a state represents all of its citizens in a parens patriae suit, a consent decree or final judgment entered in such a suit is conclusive upon those citizens and is binding upon their rights. Badgley v. City of New York, 606 F.2d 358 (2d Cir.1979), cert. denied, 447 U.S. 906, 100 S.Ct. 2989, 64 L.Ed.2d 855 (1980); Menzel v. County Utilities Corp., 501 F.Supp. 354 (E.D.Va.1979).

Emphasizing that res judicata requires that there be a final judgment on the merits, plaintiffs assert that the consent decree of the prior litigation was merely a court-approved contractual settlement between the parties to that litigation and that the prior litigation did not result in a final judgment on the merits. The Eleventh Circuit, in a civil rights context, has stated the following:

The principles of res judicata and collateral estoppel apply to consent decrees as well as to ordinary judgments entered by a court. These doctrines prevent the attack of a prior judgment by parties to the proceedings or by those with sufficient identity of interests with such parties that their interests are deemed to have been litigated in those proceedings. A final judgment may not, however, bind a nonparty when his interests were not represented; thus, situations can arise where a judgment must not be applied to him. There are, additionally, limitations on the extent to which a nonparty can undermine a prior judgment. A nonparty may not reopen the case and relitigate the merits anew; neither may he destroy the validity of the judgment between the parties.
In applying these principles to consent decrees, some courts have raised a spec-tor that any action having a burden, financial or otherwise, on a consent decree is an “impermissible collateral attack” on the decree. We do not follow this path to the extent that it deprives a nonparty to the decree of his day in court to assert the violation of his civil rights, (footnotes omitted).

United States v. Jefferson County, 720 F.2d 1511, 1517-18 (11th Cir.1983). In a proper paren patriae action, a state is deemed to represent all of its citizens, when the state is a party in a suit involving a matter of sovereign interest, and there is a presumption that the state will adequately represent the position of its citizens. Menzel, 501 F.Supp. at 357.

Plaintiffs argue that the consent decree by its own language mandates a denial of defendant’s motion. Paragraph 46 of the consent decree provides that it does not “have any effect upon rights of persons or entities not parties to this consent decree.” Plaintiffs assert that they are not barred by res judicata because they were neither parties to the consent decree entered in the earlier litigation nor in privity with the parties to the consent decree. Resolution of these arguments turn on whether the prior litigation was in fact a parens patriae suit and whether the Wilhoite plaintiffs, as citizens of Alabama and the United States, are unnamed parties or privies within the meaning of that doctrine.

In a proper parens patriae suit, the state or federal government is deemed to represent all of its citizens. New Jersey v. New York, 345 U.S. 369, 373, 73 S.Ct. 689, 691, 97 L.Ed. 1081 (1953).

The principle is a necessary recognition of sovereign dignity, as well as a working rule for good judicial administration. Otherwise, a state might be judicially impeached on matters of policy by its own subjects, and there would be no practical limitation on the number of citizens, as such, who would be entitled to be made parties.

Id.

In a recent case, the Supreme Court analyzed the parens pariae doctrine in assessing whether a state had standing to sue on behalf of all of its citizens:

This summary of the case law involving parens patriae actions leads to the following conclusions. In order to maintain such an action, the State must articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party. The State must express a quasi-sovereign interest. Although the articulation of such interests is a matter for case by case development — neither an exhaustive formal definition nor a definitive list of qualifying interests can be presented in the abstract — certain characteristics of such interests are so far evident. These characteristics fall into two general categories. First, a State has a quasi-sovereign interest in the health and well-being— both physical and economic — of its residents in general. Second, a State has a quasi-sovereign interest in not being diseriminatorily denied its rightful status within the federal system.

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607, 102 S.Ct. 3260, 3269, 73 L.Ed.2d 995 (1982). “A State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” Pennsylvania v. New Jersey, 426 U.S. 660, 665, 96 S.Ct. 2333, 2336, 49 L.Ed.2d 124 (1976). Traditionally, parens patriae lawsuits involved a government suing to enjoin alleged nuisances caused by water or air pollution. Alfred L. Snapp & Son, Inc., 458 U.S. at 602, 102 S.Ct. at 3266. See also Annot., 42 A.L.R.Fed. 23 (1979 & Supp. 1984).

[T]he State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power____
... When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests.

Alfred L. Snapp & Son, Inc., 458 U.S. at 604, 102 S.Ct. at 3267 quoting Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038 (1907).

Plaintiffs argue that Alabama was, at most, a nominal party in the earlier litigation because the negotiations in that suit were conducted by Olin and federal officials, Alabama having no significant role in the environmental case. However, upon examining the facts, the court notes that although Olin and federal officials negotiated the consent decree, Alabama was kept abreast of these negotiations and fully approved the contents of the consent decree.

Plaintiffs further urge that in the earlier litation, Alabama could not fully protect its citizens’ interest because a state does not have standing to bring a parens patriae suit against the federal government. Alfred L. Snapp & Son, Inc., 458 U.S. at 610 n. 16, 102 S.Ct. at 3270 n. 16. Although the court in Massachusetts v. Mellon, 262 U.S. 447, 485-86, 43 S.Ct. 597, 600-01, 67 L.Ed. 1078 (1923) held that a state may not bring a parens patriae action against the federal government in cases asserting the unconstitutionality of a federal statute or act, whether the same principles apply in instances of non-constitutional challenges is not answered in Mellon. Later cases have revealed that states are allowed to bring actions against the federal government or its agencies. Washington Utilities and Transportation Commissions v. F.C.C., 513 F.2d 1142, 1153 (9th Cir.1975), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975); Florida v. Weinberger, 492 F.2d 488 (5th Cir.1974). One writer has suggested that courts should grant parens patriae standing to states in suits against federal agencies where the state establishes a quasi-sovereign interest, poses no challenge to congressional policy-making authority, and does not attempt to invoke the original jurisdiction of the Supreme Court. Comment, Federal Jurisdiction: State Parens Patriae Standing in Suits Against Federal Agencies, 61 Minn.L.Rev. 691, 701-04 (1977). Moreover, plaintiffs make no suggestion that Alabama was under any legal impediment to enforce and protect the rights of its citizens against Olin or to make such a claim in consolidated cases wherein the United States is a party.

Plaintiffs also claim that the United States’ conflict of interest in the earlier litigation precludes any argument that the government was acting in a legitimate par-ens patriae role. As evidence of this assertion, plaintiffs offer the fact that the United States obtained releases for itself and its agencies from parties whose interests it supposedly represented. Also, United States Attorneys represented various agencies of the government.

In Arizona v. California, 460 U.S. 605, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) an action to determine water rights, intervening Indian Tribes challenged the binding effect of prior litigation based upon alleged conflicts in the government’s representation of their interests. The court held:

We find no merit in the Tribes’ contention that the United States’ representation of their interests was inadequate whether because of a claimed conflict of interests arising from the government’s interest in securing water rights for other federal property, or otherwise. The United States often represents varied interests in litigation involving water rights, particularly given the large extent and variety of federal land holdings in the West. See e.g. Colorado River Water Cons. District v. United States, 424 U.S. [800] at 805 [96 S.Ct. 1236, at 1240, 47 L.Ed.2d 483 (1976)]. The Government’s representation of these varied interests does not deprive our decision of finality.

Id. at 627, 103 S.Ct. at 1396.

In analyzing issues concerning consent decrees negotiated between the federal government and representatives of local governments settling suits alleging a “pattern or practice” of employment discrimination, the Fifth Circuit affirmed the lower court’s approval of a consent decree and noted that:

Unlike the situations in which we fear that a party may be attempting the profit at the expense of unrepresented individuals, e.g., class actions and shareholder derivative suits, we here have as plaintiff the government department charged with seeing that the laws are enforced. We therefore need not fear that the pecuniary interests of the plaintiff and defendant will tempt them to agree to a settlement unfair to unrepresented persons, but can safely assume that the interests of all affected have been considered.

United States v. City of Miami, Fla., 614 F.2d 1322, 1332 (5th. Cir.1980) (footnotes omitted).

One appellate court has stated the rule regarding intervention in a parens patriae action which is equally appropriate in the instant case:

An individual seeking intervention ordinarily is required to make only a minimal showing that representation of his interest may be inadequate. Under the par-ens patriae concept, however, a state that is a party to a suit involving a matter of sovereign interest is presumed to represent the interests of all its citizens. Thus, to intervene in a suit in district court in which a state is already a party, a citizen or subdivision of that state must overcome this presumption of adequate representation. A minimal showing that the representation may be inadequate is not sufficient. The applicant for intervention must demonstrate that its interest is in fact different from that of the state and that that interest will not be represented by the state.

Environmental Defense Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C.Cir.1979). Although plaintiffs have come forward with facts in an attempt to show the United States’ conflicts of interest, see Affidavit of Frank D. McPhillips, they have not met the above standard, nor have they shown any lack of diligence on the part of the United States in prosecuting the prior actions against Olin. The court has considered, in camera, evidence regarding the conflict of interest issue. See II, infra. Moreover, plaintiffs have not come forward with any facts to show fraud, collusion or conflict on the part of the State of Alabama.

Plaintiffs are correct in their assertion that Alabama law would permit individual plaintiffs to bring an action seeking injunctive relief for abatement of a public nuisance. Monsanto Chemical Co. v. Fincher, 272 Ala. 534, 133 So.2d 192 (1961). Alabama statutory law is in accord: “If a public nuisance causes a special damage to an individual in which the public does not participate, such special damage gives a right of action.” Ala.Code § 6-5-123 (1975). Note, however, that the right accrues only to an individual plaintiff who can show harm distinct in kind and degree from that suffered by the public in general. Barnes v. Kent, 292 Ala. 508, 296 So.2d 881 (1974). Plaintiffs have not made such a showing.

Moreover, it is also clear that a private citizen has no action to enjoin a nuisance where an action has already been brought on behalf of the state. Walls v. C.D. Smith & Co., 167 Ala. 138, 142, 52 So. 320, 321 (1910). “Were it otherwise, suits might be multiplied to an indefinite extent, so as to create a public evil, in many cases much greater than that which was sought to be redressed.” Duy v. Alabama Western Railroad Co., 175 Ala. 162, 184, 57 So. 724, 731 (1911) (Mayfield, J., dissenting).

By suing to eliminate the alleged public nuisance created by the presence of DDT pollution which was alleged to have caused injury to the wildlife, natural resources, health and welfare of Alabama residents in the subject area, the court finds that Alabama and the United States were suing in a parens patriae capacity as representative of all of its citizens including the Wilhoite plaintiffs. With this finding and because the instant plaintiffs are seeking the same relief as that requested and attained by Alabama and the United States in the earlier litigation, the court holds that plaintiffs’ injunctive claims are barred by res judicata and that plaintiffs are bound by the terms and provisions of the consent decree.

II

Whether a consent decree is a final judgment subject to collateral attack has already been addressed in this opinion. The court’s finding that the state adequately represented the Wilhoite plaintiffs’ interests in the earlier litigation would mandate a finding that the consent decree is a final judgment, not subject to collateral attack. However, as plaintiffs point out, consent judgments, like any other contract, can be vacated because of fraud, 18 C. Wright & A. Miller, Federal Practice & Procedure, § 4443 (1981), and may be collaterally attacked if the judgment is tainted by collusion between the parties. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961).

Plaintiffs allege that a collateral attack on the consent decree is permissible because the decree is tainted by the United States’ inherent conflicts of interest. This assertion is predicated on the argument that the Justice Department had been representing the interests of the United States Army and TVA, which were potential defendants, while at the same time pursuing an abatement action under various environmental statutes on behalf of the Environmental Protection Agency. As evidence of collusion, plaintiffs offer the fact that the guardian ad litem in the earlier litigation acknowledged that the United States gave up “a very strong” case to require Olin to take the F* alternative recommended by Water and Air Research, Inc., which was estimated to cost approximately $90 million in 1980 in favor of a remedial action plan which would take longer to execute. See, Report of Guardian Ad Litem at 37.

Plaintiffs argue that when the United States filed suit against Olin, it did so in its capacity as trustee for the natural resources at the arsenal, and that as trustee it had a conflict of interest with the beneficiaries of the trust. They assert that a trustee bears an unwavering duty of complete loyalty to the beneficiaries which cannot be fulfilled if he has a conflicting interest. NLRB v. Amax Coal Co., 453 U.S. 322, 329-30, 101 S.Ct. 2789, 2794-95, 69 L.Ed.2d 672 (1981); Manygoats v. Kleppe, 558 F.2d 556, 558 (10th Cir.1977). Plaintiffs overlook the fact that the government and its attorneys are not to be held to the same “fastidious standards of a private fiduciary” when by law they are required to represent different and sometimes conflicting interests, Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 2917, 77 L.Ed.2d 509 (1983).

The court has carefully reviewed in camera all of the documents surrounding the settlement negotiations and has fully considered all the information revealed therein and has determined that there is no evidence of fraud, collusion or conflict of interest which tainted the settlement, Memorandum Opinion filed March 22, 1985 at 7, and consequently finds that the consent decree may not be attacked on these grounds.

Ill

Finally, defendants urge that plaintiffs’ injunctive claims are untimely and barred by laches. Laches is purely an equitable doctrine by which equitable relief is denied to one who has been guilty of unconscionable delay in seeking that relief. 27 Am.Jur.2d Equity, § 152 (1966 & Supp. 1984). Federal courts look to state statutes to determine if equitable relief is barred unless the action is based on a federal claim. Id. at § 161. Under Alabama law, a court of equity may refuse relief by applying the doctrine of laches even though the claim is not barred by the statute of limitations. Mutter v. Mutter, 280 Ala. 458, 463, 195 So.2d 105, 109 (1966); McCary v. Robinson, 272 Ala. 123, 127, 130 So.2d 25, 29 (1961); Alabama Cablevision Co. v. League, 416 So.2d 433, 435 (Ala.Civ.App.1982). Ordinarily, the delay permitted by the statute of limitations does not constitute laches in the absence of special facts making delay culpable. Hogan v. Carter, 431 So.2d 1160, 1164 (Ala.1983); Sims v. Lewis, 374 So.2d 298, 305 (Ala.1979). For laches to run, the plaintiff must have failed to do something which equity would have required them to do. Hinesley v. Davidson, 335 So.2d 380, 382 (Ala.1976). One court has enunciated the rule as follows:

The doctrine of laches is founded on the inequity of allowing a party claiming a right to avoid or affirm a transaction, to unnecessarily hold the right in abeyance, either to be enlightened by subsequent happenings as to how he will elect, or so that he will acquire an undue advantage over the other parts by reason of changed conditions. Hence what delay in bringing suit short of the statutory limitation, will constitute laches, is usually to be determined from what has occurred since the transaction involved, rather than from more lapse of time.

Pratt Land & Improvement Co. v. McClain, 135 Ala. 452, 459, 33 So. 185, 187 (1902).

This case is controlled by the same considerations which govern a motion to intervene after the judgment. Hefner v. New Orleans Public Serv. Inc., 605 F.2d 893, 897 n. 12 (5th Cir.1979). The bar of laches applies where the plaintiff’s inexcusable delay in asserting a claim unduly prejudices the defendant. E.E.O.C. v. Dresser Industries, Inc., 668 F.2d 1199, 1202 (11th Cir.1982). The length of delay is ordinarily a matter within the trial court’s discretion. United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948); United States by Bell v. Allegheny-Ludlum Industries, Inc., 553 F.2d 451 (5th Cir.1977) (per curiam), cert. denied sub nom. United Steelworkers Justice Committee v. United States, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978); Annot., 57 A.L.R.Fed. 150 (1982).

This circuit has adopted the standards for analyzing the timeliness of an application for intervention as set forth in Stallworth v. Monsanto, 558 F.2d 257 (5th Cir.1977):

The four factors considered in assessing timeliness included: (1) the length of time during which the intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would be intervenor’s failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case; (3) the extent of the prejudice that the would be intervenor may suffer if his petition for leave to intervene is denied; (4) the existence of unusual circumstances militating either for or against a determination that the application is timely. Stallworth, 558 F.2d 257.

Reeves v. Wilkes, 754 F.2d 965, 969 (11th Cir.1985).

In examining the facts of the instant case, the court finds the following:

(1) In the entire period prior to entry of the consent decree, there was widespread publicity of the settlement, a 30-day period for public comment, and subsequent hearings concerning the proposed consent decree (at which counsel for the Wilhoite plaintiffs was present). During this time period, the Wilhoite plaintiffs did not file a separate action based upon an injunctive claim, seek to intervene prior to the entry of the consent decree, or seek to object to or delay the consent decree’s entry in any manner.

Plaintiffs assert that because their claims are not barred by the Alabama statute of limitations, “[djelay permitted by the Statute of Limitations does not constitute laches in absence of special factors making the delay culpable.” Hogan v. Carter, 431 So.2d 1160, 1164 (Ala.1983). The court finds that the plaintiffs’ knowledge of the efforts expended by Olin subsequent to the consent decree is a special factor making the delay culpable.

(2) Permitting plaintiffs’ action to continue would be prejudicial to Olin. In the period following entry of the consent decree, Olin has conducted elaborate studies and has spent substantial sums of money pursuant to its obligations under the consent decree. The continued assertion of plaintiffs’ claim for injunctive relief will result in delay in the implementation of any remedial action.

(3) Because the court has determined that the instant plaintiffs’ interests were adequately represented in the earlier litigation, the court holds that denying plaintiffs the opportunity to litigate their injunctive claims would not so prejudice them. Where an attempted intervenor “has no identity of interest with a party and then could not be bound, or where his interest is identical with the party and consequently he is adequately represented, we would find no prejudice sufficient to give weight to the third factor.” United States v. Jefferson County, 720 F.2d 1511, 1517 (11th Cir.1983).

(4) Plaintiffs have advanced the argument that it was only after working with the case and understanding the government conflicts within the context of the earlier litigation that it became apparent that the Environmental Protection Agency was not doing its job and that the consent decree was inadequate. The court, however, has specifically found no collusion by the parties so as to give merit to this argument. As indicated, this argument is interesting in light of plaintiffs’ argument with regard to parens patriae.

The motion will be granted.

ON MOTION TO DISMISS

This cause comes on to be heard on a Motion to Dismiss Count One filed by the defendant the United States on May 25, 1984. By order of July 18, 1984, the motion was converted to a Motion for Summary Judgment. The facts of this case are set out in the court’s Memorandum Opinion, also filed this date, which addressed defendant Olin Corporation’s Motion for Summary Judgment.

Plaintiffs’ third amended complaint, filed March 16, 1984, sets forth the following factual matters and allegations concerning the United States:

Although plaintiff’s third amended complaint seeks against the United States only injunctive relief, notices of claims under the Federal Tort Claims Act have been filed, or are in the process of being filed, on behalf of plaintiffs against the United States in connection with the incidents made the basis of this action. If those administrative claims are not resolved favorably to plaintiffs, the United States is put on notice that plaintiffs will also seek monetary damages against them under the Federal Tort Claims Act for the incidents hereinafter described. * * * * * *
COUNT ONE
28. Paragraphs 1 to 27 of this third amended complaint are hereby incorporated by reference.
29. The actions of defendants Olin and the Army constitute a continuing public and private nuisance.
30. As a direct and proximate result of the continuing and present nuisance created by Olin and the Army, plaintiffs have suffered special inconvenience, annoyance, irreparable, immediate, and continuing damage and injury not endured by the general public, for which injury and damage they are entitled to recover preliminary and final injunctive relief.
31. Wherefore, plaintiffs demand preliminary and final injunctive relief to require defendants Olin, the United States, and the appropriate agents of the United States, to remove any and all DDT and other contaminants on and in T.V.A. Property, Huntsville Spring Branch, Indian Creek, Wheeler National Wildlife Refuge, and the Tennessee River, immediately and in no event more than one year after the date of the Court Order and to require each other action by said defendants and their agents as the Court shall deem appropriate.

The United States alleges, inter alia, that because plaintiffs’ complaint sounds in tort, the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and §§ 2674-2680 (hereinafter referred to as FTCA), provides a partial waiver of sovereign immunity for tort claims and that plaintiffs have not met the prerequisite of suing under that statute. They submit that plaintiffs must first exhaust their administrative remedies and that the relief sought must be monetary, not injunctive. The United States also urges that jurisdiction cannot be predicated on the Administrative Procedure Act, 5 U.S.C. § 702 (hereinafter referred to as the APA), because although the statute provides for court review of agency action, it also states that “Nothing herein ... confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” Id.

Plaintiffs do not argue that they come within the purview of the FTCA and deny that they are suing thereunder. Instead, they insist that they are entitled to injunctive relief against the United States under the APA, that the court has jurisdiction under 28 U.S.C. § 1331, and that the APA does provide plaintiffs with an independent cause of action which gives this court federal question jurisdiction.

The Administrative Procedure Act provides in pertinent part as follows:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

5 U.S.C. § 702 (1976).

The APA provides a general source of judicial power to review final agency actions. Broadway v. Block, 694 F.2d 979, 986 (5th Cir.1982). The Act abolishes the defense of sovereign immunity only in actions for specific relief. 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3659 (1985). The Supreme Court has concluded that the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action. Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977).

Plaintiffs have directed the court’s attention to several cases which they allege delineate the judicial review and relief available to them. However, in Jaffee v. United States, 592 F.2d 712 (3rd Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), the court held that the APA waives sovereign immunity in review of agency action where plaintiffs sought non-monetary relief under federal question jurisdiction by alleging that the government violated rights guaranteed by several constitutional amendments. Similarly, in Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1139-40 (5th Cir.1980), rev’d on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982), plaintiff’s complaint alleged constitutional violations and the Fifth Circuit held that “Congress did intend to waive the defense of sovereign immunity for nonstatutory review under section 1331.” Id. at 1139. Moreover, in cases cited by plaintiffs where the plaintiffs alleged jurisdiction pursuant to the APA and 28 U.S.C. § 1331, the underlying complaints were premised on either a federal statutory or constitutional claim. Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979); Glacier Park Foundation v. Watt, 663 F.2d 882 (9th Cir.1981); Rowe v. United States, 633 F.2d 799 (9th Cir.1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981); Johnsrud v. Carter, 620 F.2d 29 (3rd Cir.1980).

Clearly, there is a distinction between alleging jurisdiction under these statutes based on a federal question and on tort. The Tort Claims Act is the exclusive remedy for claims sounding in tort, 14 C. Wright, supra § 3658, and the APA confers no jurisdiction on this court to grant relief where another statute expressly or impliedly forbids the relief which is sought, as does the FTCA in this case. 28 U.S.C. § 2679.

Moreover, even if this court were to find jurisdiction under 28 U.S.C. § 1331, plaintiffs’ case is further complicated by the fact that they are essentially alleging inaction. The Supreme Court has recently decided that an agency's decision not to take enforcement action should be presumed immune from judicial review under the APA and that the presumption may be rebutted where the substantive statute had provided guidelines for the agency to follow in exercising its enforcement powers. Heckler v. Chaney, — U.S. -, -, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985). The court having been directed to no such statutory guidelines, the alleged agency inaction is found to be unreviewable.

The United States also submits that plaintiffs’ first count is an impermissible collateral attack on the consent decree. After examining count one of plaintiffs’ third amended complaint, the court finds that plaintiffs are seeking the same relief as that requested and attained by Alabama and the United States in the earlier Olin litigation. Thus, the court hereby incorporates the reasoning of Parts I and II of its Memorandum Opinion addressing Olin’s Motion for Summary Judgment and holds that plaintiffs are bound by the terms and provisions of the consent decree as to the claim they have against the United States.

Finally, plaintiffs argue that even if its injunctive claim against the United States constitutes a collateral attack on the consent decree, then such collateral attack is permissible in that the decree is tainted by the United States’ inherent conflicts of interest. As noted in Part II of its above referenced Memorandum Opinion, the court has found no evidence to support a conflict of interest allegation. The motion will be granted.

FINAL JUDGMENT

In accordance with Memorandum Opinions filed contemporaneously herewith, the Motion for Summary Judgment filed by defendant Olin Corporation on June 11, 1984, and the Motion to Dismiss filed by the United States of America on May 25, 1984, converted to a Motion for Summary Judgment by Order of July 18, 1984, are GRANTED. The action in CV84-PT1194-S is DISMISSED, with prejudice. Costs are assessed against the plaintiffs. The court finds and determines that there is no just reason for delay and directs that this judgment be entered as a final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

      . For the sake of simplicity, these chemicals will be referred to as DDT.

      . Cloud v. Olin, CV79-PT-5128-NE (filed July 9, 1979) was followed by Alabama ex rel. Graddick v. Olin, CV79-PT-5174-NE (filed September 10, 1979), Freeman v. Olin, CV80-PT-5057-NE (filed March 14, 1980), Parcus v. Olin, CV80-PT5098-NE (removed April 23, 1980), United States v. Olin, CV80-PT-5300-NE (filed December 4, 1980), Charest v. Olin, CV83-PT-5115-NE (removed February 28, 1983).

      . This was shortly after the court had conducted a settlement conference and after considerable publicity had been given to the fact that there was a proposed settlement whereby substantial sums would be paid to private plaintiffs. Apparently these plaintiffs did not consider suing earlier although one of the private plaintiff cases had been pending since 1979 and all of the DDT had been produced by 1971.

      . The original damage claim bears the case number CV83-C-5021-NE.

      . Interestingly, while denying that the parens patriae doctrine applies, in their argument against the application of laches, plaintiffs argue that they did rely on the United States to properly represent their interests.

      . Attorney(s) for the State attended all hearings.

      . Plaintiffs argue that because this case involves intrastate rather than interstate pollution, many of the considerations supporting a parens patriae .action are absent. The court is not persuaded that this distinction is dispositive.

      . Cases involving intervention are particularly apropos in that if intervention would have been improper, it would be illogical to allow a separate suit, absent special factors.

      . The court notes, however, that the guardian ad litem ultimately voiced approval to the consent decree and proposal.

      . See, however, this court’s discussion of the F* remedy in its Memorandum Opinion addressing the documents examined in camera. There is an indication that the F* remedy came out of Army studies and was never really endorsed by environmental agencies or fish and wildlife officials.

      . Plaintiffs also advance a similar argument that the Army could not act as trustee.

      . Although Nevada entailed a situation where Congress explicitly required a federal agency to represent dual interests, Congress has reserved the conduct of litigation and the supervision thereof in which the United States, an agency, or officer thereof, is a party to officers of the Justice Department. 28 U.S.C. §§ 516, 519.

      . At these hearings, the court itself questioned at least one expert witness with regard to the reasonableness of the projected time period involved in the proposed remedy. Although, at the time of the hearings, there had been prior wide-spread publicity regarding the EPA and its officials and chemical pollution in general, only one letter type objection by one individual was filed. That did not relate to the time of the remedy and that individual did not appear at the hearing.

      . Clearly, before Califano v. Sanders courts were divided on whether the APA could be used as a jurisdictional basis for bringing a claim. 14 C. Wright, supra, § 3655 n. 10.

      . The doctrine of laches may also provide an additional basis for the court’s judgment.

      . Plaintiffs also allege that the United States’ failure to file suit against the Army under Section 106(c) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9606, evidenced the conflict of interest. As noted earlier in this opinion, however, this is the very type of agency inaction presumed unreviewable by the Court. Chaney, at-, 105 S.Ct. at 1657.

      . Since this claim has been severed and a new case number assigned, the latter finding, determination and direction may be surplusage.


source: Caselaw Access Project

author: KOCORAS, District Judge:

license: Public Domain

text:
    AMERICAN NURSES’ ASSOCIATION; Illinois Nurses’ Association; Mary J. Anderson, Gwendolyn T; Ashton, Mary Sue Barnett, Patricia Bender, Sue Celeste Christian, Debra Cutler, Ella Vera Evans, John Fitzpatrick, Barbara Francois, Barbara Goldsberry, Delores I. Gwin, Rosemary Sue Hill, Sharon Hoyle, Estelle L. Huechteman, Marla J. Hunter, Deva Roster, Mary L. McDonald, Patricia Petrine, Mary Ritchie, Cleo B. Spires, and Carolyn R. Verson on behalf of themselves and all other similarly situated, Plaintiffs, v. STATE OF ILLINOIS; its Governor James Thompson; the State Department of Corrections and its Director Michael Lane; the State Department of Public Health and its Acting Director Fred Uhlig; the State Department of Mental Health & Developmentally Disabled and its Director Michael Belletire; the State Department of Veterans’ Affairs and its Director David Hardwick; the State Department of Public Aid and its Director Gregory L. Coler; the State Department of Aging and its Acting Director Janet S. Otwell; the State Department of Central Management Services and its Director Louis J. Giordano; and the State of Illinois and its Governor James R. Thompson on Behalf of all other unnamed State Agencies subject to the State Personnel Code, Defendants.
    No. 84 C 4451.
    United States District Court, N.D. Illinois, E.D.
    April 4, 1985.

      Edith Barnett, Special Council, American Nurses Assoc., Washington, D.C., Richard F. Watt, Peggy A. Hillman, Michael H. Slutsky, Cotton, Watt, Jones & King, Chicago, 111., for plaintiffs.

      James I. Rubin, Butler, Rubin, Newcomer, Saltarelli & Boyd, Brigitte Schmidt Bell, Ellen M. Babbitt, Michael A. Stick, Chicago, 111., for defendants.
   MEMORANDUM OPINION

KOCORAS, District Judge:

This matter comes before the court on defendants’ motion to dismiss or, in the alternative, for summary judgment. Plaintiffs are the American Nurses’ Association (ANA), the Illinois Nurses’ Association (INA), and twenty one individuals employed by the State of Illinois suing on their own behalf and as class representatives. The complaint charges the State of Illinois with sex discrimination in the classification and compensation of employees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), the Due Process and Equal Protection clauses of the Fourteenth Amendment of the United States Constitution, and the Civil Rights Act of 1871, 42 U.S.C. § 1983.

Plaintiffs, either fearing a premature negative response by the court to the term or for other reasons, strenuously object to defendants’ labeling the action a “comparable worth” case. Distilled to their essence, however, the asserted causes of action are fundamentally dependent on recognition of the concept of comparable worth. Specifically, plaintiffs premise the suit on the proposition that a sex-based wage discrimination claim can be proved by a showing of lower pay to employees in historically female-dominated job classifications than to employees in historically male-dominated job classifications for jobs which have been evaluated as requiring equal or comparable skill, effort, and responsibility under similar working conditions. Defendants, the State of Illinois, its governor, and several state agencies, departments, and their directors, have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment against plaintiffs.

Comparable worth has been described by many as the major civil rights issue of the eighties. It has been the subject of voluminous scholarly and popular commentary, litigation, labor negotiations, and legislation in the States. Several bills addressing the issue are currently pending in Congress. Part of the impetus for the increasing attention given to comparable worth no doubt stems from the recognition that despite the dramatic increase of women entering the labor market in recent years, their earnings have remained roughly three-fifths that of males’ earnings. Moreover, the debate over whether Title VII requires equal pay for jobs of comparable worth has escalated dramatically as a result of the Ninth Circuit’s historic decision in Gunther v. County of Washington, 602 F.2d 882, (9th Cir.1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), which the Supreme Court subsequently affirmed.

In Gunther, the Supreme Court gave greater scope to claims of sexual discrimination in compensation under Title VII as compared to similar claims under the Equal Pay Act. The Equal Pay Act only requires equal pay for equal work. Title VII, on the other hand, by virtue of Gunther, imposes an unconditional obligation on employers not to discriminate in compensation on the basis of sex, regardless of whether the claim is based on allegations of equal work.

The Supreme Court held in Gunther that Title VII’s prohibition of sex-based wage discrimination is not limited, by virtue of the “Bennett Amendment”, to claims of equal pay for equal worth. The Court, however, stressed the narrowness of its holding, explicitly pointing out in both the majority and dissenting opinions that the holding did not require judicial evaluation or imposition of a particular wage scale. Id. at 181-82, 101 S.Ct. at 2253-54. Consequently, Gunther does not stand for the proposition that Title VII prohibits disproportionately low pay in positions predominantly occupied by women. It establishes that Title VII categorically forbids discrimination in compensation on the basis of sex; what kind of evidence will suffice to support a claim of sex-based wage discrimination was not addressed by the Gunther court and constitutes the current legal controversy.

After carefully reviewing the briefs submitted by the parties and conducting independent research, this court concludes that unequal pay for jobs alleged to be of comparable worth on the basis of an evaluative study which the employer commissioned but never adopted does not constitute a viable legal theory under Title VII. I base this conclusion on three grounds: Congress’s explicit rejection of the theory of comparable worth as documented in the legislative history of the Equal Pay Act and Title VII; the Supreme Court’s emphasis on the narrowness of the issue and the holding in Gunther; and this court’s judgment that permitting proof of intentional discrimination through studies of comparable worth would be neither workable nor sound.

Federal courts have a duty to apply the anti-discrimination legislation Congress has enacted in a manner consistent with Congressional intent. Two major legislative enactments create causes of action and remedies for discrimination in compensation on the basis of sex; read together, they indicate that Title VII cannot be extended to impose a particular wage scale suggested by an evaluative study which an employer has not adopted. The legislative history of the Equal Pay Act indicates that Congress carefully considered and specifically rejected a comparable worth standard when it enacted the Equal Pay Act. One year later, when debating Title VII, Congress neither explicitly nor implicitly reversed its earlier policy judgment.

Plaintiffs maintain that in setting forth the legislative history, defendants have mistakenly equated “comparable work” and “comparable worth.” They contend that, in fact, during the Equal Pay Act debates, Congress was only considering resolution of the narrow problem of unequal pay to women workers for work which was virtually identical to work performed by men workers. In plaintiffs’ estimation, the only issue was whether the statute’s remedial purpose could best be accomplished by using language referring to “comparable work” or “equal work”. Plaintiffs are correct in maintaining Congress intended the Equal Pay Act to cover only jobs that are substantially identical or equal. However, the legislative history demonstrates that in seeking the language that would best embody this intention, Congress considered, debated, and rejected “comparable worth” as a basis for finding sex discrimination.

As defendants aptly demonstrate in their brief, during the extensive hearings and debates regarding amendments and redrafts of the Equal Pay Act, both Houses of Congress indicated their intent to prevent the courts and government from analyzing and dictating wage rates in all but the narrow “equal work” situations. The House changed the initial language of the Act which describes the kind of jobs it applies to from “work of comparable character on jobs the performance of which requires comparable skills” to “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 108 Cong.Rec. 14767, 14771. Representative Frelinqhuysen clearly articulated the significance of the amendment:

[T]he jobs in dispute must be the same in work content, effort, skill and responsibility requirements, and in working conditions. As indicated earlier, it is not intended to compare unrelated jobs, or jobs that have been historically and normally considered by the industry to be different.

109 Cong.Rec. 9196 (1963). Representative Goodell, who sponsored the bill that became the Equal Pay Act, reiterated this view with specific reference to the “comparable work” versus “equal work” distinction:

Last year when the House changed the word “comparable” to “equal” the clear intention was to narrow the whole concept. We went from “comparable” to “equal” meaning that the jobs involved should be virtually identical____ We do not expect the Labor Department people to go into an establishment and attempt to rate jobs that are not equal. We do not want to hear the Department say, “Well, they amount to the same thing,” and evaluate them so they come up to the same skill or point.

109 Cong.Rec. 9197 (1963). As the Fourth Circuit has stated, Congress “did not authorize the Secretary [of Labor] or the courts to engage in wholesale reevaluation of any employer’s pay structure in order to enforce their own conceptions of economic worth.” Brennan v. Prince William Hospital Corp., 503 F.2d 282, 285 (4th Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975). Moreover, the Congressional debates explicitly document Congress’s specific intention that the Equal Pay Act “not be invoked to mandate equality of pay for jobs of different content.” Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1173 (3d Cir.1977).

The legislative history of the Equal Pay Act and Congress’s explicit rejection of the theory of comparable worth controls in any interpretation of Title VII, passed less than a year later, because nothing in the language or legislative history of Title VII indicates an intent to reverse Congress’s prior decision not to adopt comparable worth as a method of identifying discrimination. Moreover, although the Supreme Court has held that Title VII is broader than the Equal Pay Act in certain respects, in the one Supreme Court ease examining the interrelationship of the Equal Pay Act and Title VII, the Court distinguished the narrowness of the question before them from a comparable worth claim. County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981).

In Gunther, the Supreme Court held that an employer may not adopt a particular compensation system and then unequally apply it in a discriminatory manner. The defendant county conducted a survey of the wages commanded in the market place for jobs equal to those of its own employees. The county then purportedly adopted the market standard but actually paid male prison guards a higher percentage of their surveyed market worth than it paid female prison guards. A crucial distinction exists between the facts of the Gunther case and the ease before this court. The employer in Gunther had deviated from the results of a job evaluation system it had adopted in setting the wage rates of women’s jobs. In other words, a consistent pattern emerged of underpayment of women’s jobs relative to their accepted evaluated worth, while men’s jobs were paid in accordance with their accepted evaluated worth as determined by the employer’s own job evaluation plan.

In the current case, no such implementation of the commissioned evaluative study has taken place. The Court in Gunther did not hold that discrimination can be inferred from the mere fact that a particular job evaluation study has concluded a disparity exists between predominantly male and predominantly female jobs. Nor did the Court say that an employer who commissions a job evaluation study necessarily has to conform its pay rates to the results of its study. Rather, job evaluation was an element of proof in Gunther because there was a clear showing the employer deviated from the results of its own job evaluation in setting the rates for women’s jobs but not for men’s jobs.

Plaintiffs concede that defendants never “implemented” the findings of the evaluative study, but they make two arguments for why the results of the study, nevertheless, constitute probative evidence of discrimination. First, plaintiffs argue essentially that because the evaluative study was funded by the State and conducted under the auspices of the Illinois Commission on the Status of Women, the State’s failure to pay its employees according to the results of that study is actionable. This argument is simply without merit; mere funding and performance of such a study do not commit an employer to adopting the results of the study. Nothing in the law obligates an employer to adopt a new pay structure simply because a particular evaluative study indicates that a different set of pay relationships would be more equitable. Such a rule would create a disincentive to employers to conduct job evaluation studies at all. What the law does require is equal application of any particular wage scale an employer does adopt, and plaintiffs have made no claims that defendants have violated this principle in the current case. Although plaintiffs claim that this suit, like Gunther, does not require a court to make its own subjective assessment of the value of the jobs in question, plaintiffs do, in effect, request the court to impose a particular wage scale on an employer. This court declines to assume such supervisory power.

Such an effect would also result if the court adopted plaintiffs’ second argument for why the results of the study constitute probative evidence of discrimination, i.e., that the State’s failure to take corrective action to implement the findings of the study supports a finding of unlawful discrimination. Job evaluations can be a useful diagnostic tool, but the law does not require an employer to implement immediately whatever pay changes a particular study suggests, without regard to economic considerations, the labor market, bargaining demands or the possibility that some other study might produce different results. As Chief Judge Barbara Crabb of the Western District of Wisconsin wrote in a similar context:

Nothing in the law indicates that the employer’s liability extends to conditions in the marketplace which it did not create. Nothing indicates that it is improper for an employer to pay the wage role necessary to compete in the marketplace for qualified applicants.

Briggs v. City of Madison, 536 F.Supp. 435, 443 (W.D.Wisc.1982). The job evaluation cases relied on by plaintiffs do not support use of comparable worth evidence to infer intent, to prove discrimination, or to mandate a remedy.

Finally, over and above my judgment that neither the legislative history of Title VII nor .the Supreme Court’s holding in Gunther authorizes proof of a prima facie case through comparable worth evidence, I am unwilling to expand the limits of Title VII to encompass such a claim. In deciding a comparable worth claim, a court would be compelled either to evaluate the validity of the job evaluation system used by an employer, including any external factors, and then impose a particular wage system on the employer, or in the absence of such a system to determine the relative worth of the job in question by a comparison of it to other jobs in the employer’s establishment. Such “standardless supervision” by the courts is, in my judgment, unauthorized and unwarranted. Spaulding v. Univ. of Washington, 740 F.2d 686, 701 (9th Cir.1984).

Aside from the problems inherent in the implementation and administration of a comparable worth standard by the courts, any criteria of pay equity ultimately rests on value judgments. Although some correlation between sex-segregated jobs and lower wages no doubt exists, the job characterization factor is undeniably only one among many of the determinatives of pay scales. Because jobs do not have an intrinsic value that can be scientifically measured, the limitations inherent in job evaluation techniques prohibit the proposed extension of Title VII.

It is on this fundamental point that I depart from Judge Tanner’s reasoning in the one case, to date, which has recognized a broad based comparable worth claim. In AFSCME v. State of Washington, 578 F.Supp. 846 (D.Wash.1983), currently on appeal, Judge Tanner concluded that the State of Washington violated Title VII by compensating women employees in female-dominated job classifications at levels below those paid to employees in male-dominated job classifications that had been rated comparable in State-sponsored job evaluation studies. The State had commissioned studies that placed numerical values on State jobs, but no agreement had been reached, at least until 1983, that the State would adopt a new pay scale on the basis of those numbers. To reach the conclusion in the Washington State case, the court had to assume that the results of the State’s job evaluation studies were valid measurements of the relative “worth” of the jobs in question — more valid, in fact, than the values placed on those jobs by the market which, the State alleged, formed the basis for the State’s existing pay scales. I, unlike Judge Tanner, am unwilling to treat the results of the State’s job evaluation studies as the true and reliable measurement of the inherent worth of the surveyed jobs.

The federal policy embodied in Title VII is that individuals should be entitled to equal opportunities, not results, in the job market. The courts under existing authority cannot require an employer to reassess the relative worth of all the jobs in the employer’s establishment and then to adopt a particular wage structure suggested by the assessment.

The court cannot infer intent merely from the existence of wage differences bptween employees in historically female-dominated job classifications and employees in historically male-dominated job classifications. Although plaintiffs also allege discrimination in classification, as defendants point out, an allegation of classification discrimination can only take two forms, neither of which is actionable under the current complaint. Plaintiffs are alleging either that persons performing equal jobs were misclassified and paid differently (an equal pay claim) or, alternatively, that persons performing “comparable jobs” are properly classified but allegedly paid improperly; this can only be proven by impermissable evidence of comparable worth.

Moreover, as the Ninth Circuit has noted, relying on a factor such as competitive market prices does not qualify as a facially neutral policy or practice having discriminatory impact for the purposes of a disparate impact analysis. Spaulding v. University of Washington, 740 F.2d 686 (9th Cir.1984) cert. denied, — U.S.-, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). Rather, the disparate impact model was developed as a form of pretext analysis to handle specific employment practices not obviously job related, such as employers’ intelligence tests which adversely affect minorities. Thus, for Title VII purposes, plaintiffs’ simply labeling defendants’ actions a policy or practice is not sufficient to state a cause of action. Plaintiffs also contend that they have raised claims involving equal pay violations. The current complaint simply does not allege facts sufficient to support an equal pay claim, and the plaintiffs do not assert a violation of the Equal Pay Act.

In addition to allegations of violations of Title VII, plaintiffs have also alleged violations of the Fourteenth Amendment and § 1983. The Seventh Circuit has held that a court’s evaluation of § 1983 claims in a discrimination case must be guided by the same principles which are applicable to the evaluation of Fourteenth Amendment claims in a discrimination suit. Mescall v. Burrus, 603 F.2d 1266, 1271 (7th Cir.1979). Therefore, plaintiffs’ § 1983 and Fourteenth Amendment claims may be considered simultaneously.

Plaintiffs’ § 1983 and Fourteenth Amendment claims are based on the argument that defendants’ intentional practice of paying lower salaries to employees in predominantly female job classifications than to employees in predominantly male job classifications is a violation of the due process and equal protection clauses. Plaintiffs rely on the same argument made in support of their Title VII claim to support their § 1983 and Fourteenth Amendment claims.

Since I have found that plaintiffs’ complaint of intentional sex discrimination under Title VII, cannot stand, they cannot rely on their Title VII claim to establish the requirement of discriminatory purpose necessary for a Fourteenth Amendment claim. See, Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Mescall v. Burrus, 603 F.2d at 1271. Plaintiffs make no other argument nor cite any other evidence to demonstrate that a discriminatory purpose influenced the State’s classification practice. Accordingly, plaintiffs have failed to state a claim for relief under § 1983 or the Fourteenth Amendment, as well as under Title VII.

The facts actually alleged in the complaint are that a comparable worth evaluative study was generated by a legislative advisory commission but never implemented by the State. Because plaintiffs’ action based on the concept of comparable worth goes far beyond the existing statutory law, Supreme Court precedent, and the application of constitutional provisions, defendants’ motion to dismiss for failure to state a cause of action will be granted.

      . The Washington State case presented an unusual fact situation in that the State of Washington had recognized the pay disparity problem indicated by the studies and had begun to deal with it as a matter of public policy. In December of 1976, for example, Governor Daniel Evans included a $7 million appropriation in the budget to begin implementation of a new pay scale suggested by the comparable worth study. When his successor, Dixie Lee Ray, became Governor in 1977, however, she took the appropriation out of the budget even though a surplus existed in the 1976-77 budget. In effect, the governor and the top personnel people in the State of Washington had practically admitted their wage system was discriminatory and then consciously decided to do nothing to remedy it. The court thus viewed the state’s unwillingness to remedy a recognized pattern of sex discrimination as evidence of intentional unfavorable treatment of employees in predominantly female job classifications. AFSCME v. State of Washington, 578 F.Supp. 846, 866-67 (D.Wash.1983).


author: LIMBAUGH, District Judge.

text:
    Mary LOVE, Plaintiff, v. SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, Defendant.
    No. 83-2057C(5).
    United States District Court, E.D. Missouri.
    April 5, 1985.

      Doris G. Black, St. Louis, Mo., for plaintiff.
    Friedman, Weitzman & Friedman, Arthur Friedman, Mary E. Davidson, Milton L. Schwartz, St. Louis, Mo., for defendant.
   MEMORANDUM

LIMBAUGH, District Judge.

INTRODUCTION

Plaintiff, Mary Love, brought this action pursuant to 42 U.S.C. § 1981. Plaintiff alleges that defendant discriminated against her on the basis of her race. Plaintiff seeks recovery of actual damages and reasonable attorney’s fees expended in this case.

This matter is before the Court for a decision on the merits following a five day bench trial. After consideration of the testimony adduced at trial, the exhibits introduced into evidence, the briefs of the parties, and the applicable law, the Court hereby makes the following findings of fact and conclusions of law, as required by Rule 52 of Federal Rules of Civil Procedure.

FINDINGS OF FACT

Plaintiff, Mary Love, is a black female citizen of the United States. Plaintiff graduated from Harris-Stowe State College on December 12, 1980, with a Bachelor of Science Degree in Education. Plaintiff was certified to teach special education in the areas of behavior disorders (BD), orthopedically handicapped (OH), educable mentally retarded (EMR) in the Kindergarten through ninth grade level (K-9). The Missouri Department of Education awards life certifications to an applicant who can prove that she has completed the required coursework for certification.

Defendant, Special School District of St. Louis County, is an incorporated political subdivision of the State of Missouri. Defendant was formed to provide special education services to students attending the twenty-six local school districts in St. Louis County, Missouri.

The Special School District’s administrative structure is divided into geographical areas, with a supervisor responsible for one or more local school districts. A majority of the instructional staff, including teacher assistants, work in the local school district buildings. The instructional staff’s primary contact with the Special School District is through the Special School District supervisor in their local school district. Each Special School District supervisor interviews and then recommends applicants to fill the instructional staff in the supervisor’s geographical area. The Board of Education in the local school district actually employs the teachers, usually acting on the supervisor’s recommendation.

On January 6, 1981, plaintiff applied to defendant for a teacher’s or teacher assistant’s job. Plaintiff’s application was referred to John Brubaker, a Special School District Supervisor for the Ritenour School District. Brubaker’s area had three openings for teacher assistants at the time. Brubaker contacted plaintiff and set an appointment to meet her on January 16, 1981.

During plaintiff’s interview, Brubaker found that plaintiff was not very knowledgeable about special education, even though she was certified in some special education areas. Nevertheless, Brubaker recommended plaintiff for a teacher assistant’s position. Plaintiff took the job and began work on January 21, 1981.

Once plaintiff accepted the teacher assistant’s position, her file was removed from the applicant file cabinet and incorporated into her personnel file. The effect of defendant’s practice was to remove plaintiff’s application from further consideration for a teacher’s position. The evidence at trial showed that defendant’s practice applied to everyone hired by defendant. If one of defendant’s employees wanted to be considered for another job in the Special School District, the employee must have either sent a second application or a letter to the Personnel Office requesting that her applicant file be kept open. Although she could not explain why, plaintiff believed her application would remain open for consideration of teaching positions with defendant.

There was evidence that the Special School District’s policy was circumvented in a few cases. On a few occasions, an applicant who was hired as a teacher assistant would let her supervisor know she was interested in a teaching job. If the supervisor felt the teacher assistant was qualified for a teaching position, the supervisor would interview the teacher assistant for the job if one became available.

Plaintiff’s first evaluation as a teacher assistant rated her overall performance as “unsatisfactory (but improving)”. Plaintiff’s evaluation was reviewed by Brubaker and plaintiff’s supervising teachers, Virginia Bender and Jane Gidlow. The evaluation rated several areas including: (1) understanding the exceptional child’s needs, (2) working with children and carrying out activities of the child’s program, (3) skills in operation of office and audiovisual equipment, and (4) flexibility in behavior management situations. In all four of the categories listed above, plaintiff was rated less than satisfactory. Furthermore, plaintiff was rated unsatisfactory in implementing an education plan in a teacher’s absence. The crux of plaintiff’s problem, as the supervisor and supervising teachers saw it, was plaintiff’s inability to be clear and precise in her speaking and writing.

Plaintiff completed the 1980-81 school year and took a maternity leave for the first two months of the 1981-82 term. Plaintiff returned from maternity leave on November 1, 1981, and accepted an assignment as a teacher assistant at Kratz School, in the Ritenour School District. Shortly after returning to work, plaintiff asked Brubaker if any teaching positions were available. Brubaker did not remember how he answered plaintiff's question; nonetheless, the evidence showed that Ritenour School District had no vacant teaching positions at the time.

A few months later, early in 1982, plaintiff asked Brubaker what she needed to do to apply for a teaching position. Brubaker told plaintiff to file an application with the Personnel Office. Brubaker then obtained a blank application packet for plaintiff at her request.

Plaintiff claimed that she sent her application with Brubaker’s recommendation to the Personnel Office sometime in early 1982. Brubaker never remembered recommending plaintiff for a teacher’s position. Moreover, Brubaker asserted that he could not recommend plaintiff for a teacher’s position at the time because he thought plaintiff was still lacking in basic teaching skills.

Other facts adduced at trial show that plaintiff had not filed an application in early 1982. Plaintiff did not have a copy of her application even though she had kept copies of her original application (in December, 1980) and her most recent application (October, 1982). Upon searching the applicant and personnel files, the Personnel Office of the Special School District could not find an application from plaintiff dated in early 1982. Furthermore, in August, 1982, plaintiff told Sharon Feldt, another Special School District employee, that she had not applied for a teacher’s position because she had small children at home and was not ready to accept teaching responsibilities.

During the summer of 1982, John Brubaker resigned from his position at the Special School District. Barbara McEvoy was assigned as Supervisor to replace Brubaker. McEvoy had not known plaintiff before taking Brubaker’s job.

The Special School District employees reported to their assigned classrooms during the last week of August, 1982, to prepare for the new school year. Gail Delaney, the teacher assigned to plaintiff’s classroom at Kratz School, resigned the day the teachers and teacher assistants were to report. McEvoy, plaintiffs new supervisor, asked plaintiff to substitute as a teacher in her assigned classroom until a permanent replacement could be found. McEvoy’s request was made pursuant to the Special School District’s policy and to the teacher assistant’s job description.

Plaintiff refused McEvoy’s request, saying she just wanted to do her job as a teacher assistant. McEvoy then brought Sharon Feldt into the classroom. Feldt agreed to substitute teach until a permanent replacement could be found.

McEvoy then began a search for a permanent teacher for the Kratz School classroom. McEvoy first checked for applicant files among the teacher assistants in her supervisory area and found none. McEvoy then screened the files of the other applicants and asked three of the applicants to interview for the job.

McEvoy ultimately chose Barbara Wagner as the permanent replacement for Gail Delaney’s position. Wagner had a Master’s degree in teaching and another Master’s degree in education. Wagner had several areas of life certification which included: (1) elementary education; (2) learning disability (K — 9); (3) Kindergarten; (4) behavior disorders (K-9) and (5) reading specialist. Ms. Wagner was originally hired as a teacher assistant and had been working in that capacity since 1980. Wagner’s recommendation record showed her competency ratings in all areas were high.

Wagner began teaching in 1982. Plaintiff claimed she had to train Wagner to perform the teaching duties; however, when asked in subsequent interviews for teaching positions, plaintiff never discussed any prior teaching experience she had, nor did she ever tell anyone about her training experience with Wagner. In addition, McEvoy testified that on every one of the occasions she visited Wagner’s classroom, Wagner was teaching the class.

Several weeks later, plaintiff filed an application for a teaching job with the Personnel Office. The Personnel Office received plaintiff’s application October 22, 1982.

Plaintiff was interviewed on January 7, 1983, for a position teaching learning disabled (LD) students. Judy Bender, a supervisor for the Special School District, interviewed plaintiff for the job. Bender stated she based her recommendation on three criteria which are: (1) oral and written communication skills; (2) interpretation of diagnostic instruments, and (3) ability to work with behavioral and learning problem students. Bender found plaintiff’s writing samples contained several grammatical errors. Bender also found that not only had plaintiff not given any diagnostic tests which would be used in the teaching position, she could not tell Bender how any of the tests could be used. Bender stated that she expected a college graduate with a Special Education major to have the ability to tell how diagnostic tests could be used in a classroom situation.

Of the three candidates interviewed for the LD position, Kathleen Schnake Kroenung was selected for the job. Kroenung was promoted from teacher assistant to teacher. Kroenung had three and one-half years of teaching experience before working for the Special School District. Kroenung had also graduated from Harris-Stowe with a final grade point average of 3.412 compared to plaintiff’s final grade point average of 2.766. During Kroenung’s interview, Bender found Kroenung to be well versed in the Special Education area. Kroenung not only could name several diagnostic tests used in the Special Education area, she could convey to the interviewer that she knew how the tests were used and how to interpret the test results to aid in implementing a teaching plan for the student.

On January 25, 1983, Vito Maniaci (the Regional Executive Director of the Teacher’s Union) filed a grievance on plaintiff’s behalf. Plaintiff’s grievance alleged that plaintiff failed to be promoted to a teaching position in violation of the collective bargaining agreement. On January 31, 1983, McEvoy answered plaintiff’s first level grievance by explaining that she did not know of plaintiffs interest in a teaching position until late September, 1982. McEvoy then promised to consider plaintiff for any teaching position which became available in her supervisory area.

On February 2, 1983, Maniaci appealed plaintiffs grievance for a hearing on the supervisory level. Paul Dulle, an Assistant Superintendent, offered to resolve the dispute, suggesting that plaintiff be given the opportunity to interview for all teaching positions for which plaintiff held certification through August 31, 1983. Plaintiff rejected the offer and appealed to the Board of Education.

Plaintiffs hearing before the Board of Education took place on April 19, 1983. At the hearing, plaintiff also claimed the Special School District failed to pay her ten dollars per day substitute pay for the week Sharon Feldt taught at Kratz School in late August, 1982. Barbara McEvoy’s reason for denying plaintiff substitute pay was that Sharon Feldt had filled in as the substitute after Gail Delaney’s resignation.

In early May, 1983, Dr. Roland J. Werner, the Superintendent of Schools, wrote to plaintiff informing her of the Board’s decision. Plaintiff’s requests for immediate promotion and back pay were denied. Plaintiff was paid fifty dollars “in an effort to limit the degree of misunderstanding”. The Board decided that plaintiff would receive written notification of all vacancies occurring between May 4, and August 31, 1983, and would be given the chance to be interviewed for all positions for which she held certification until August 31.

Doris Eldridge, the Assistant Superintendent for Personnel Services for Staff and Students, was charged with the duty of implementing the Board’s decision. Eldridge notified all supervisors that plaintiff was to be interviewed for all positions in the areas of BD, OH, EMR and LD.

Plaintiff had numerous interviews during July and August, 1983. Several of the supervisors who conducted the interviews testified at trial and gave the most important criteria for choosing a teaching candidate. Those criteria are: (1) oral and written communication skills, (2) ability to implement diagnostic examinations and then use the test results to assess a student’s disability, (3) ability to implement a program for the disabled student in a classroom setting, and (4) behavior management skills.

Even though their evaluations were done on different days and on separate interviews, the supervisors’ testimony was consistent in that they agreed plaintiff was not qualified for any of the vacancies during 1983. Plaintiff’s first deficiency was her inability to communicate clearly. Plaintiff’s second deficiency was her inability to name and then describe various diagnostic tests used in special education classes. Many supervisors found that they had to prompt plaintiff into describing the types of programs she would use for a disabled student, whereas almost all of the other applicants did not have to be led. The evaluation of plaintiff’s abilities by supervisor Beatrice Strong, a black woman, was no different than the evaluations done by the white supervisors.

Plaintiff has offered approximately three hundred personnel files into evidence. Most of the files represent teachers hired during the time plaintiff had no application on file with the Personnel Office. Of the few cases in which a teacher assistant was promoted without filing a letter to the Personnel Office, none of the teacher assistants promoted were white, with less qualifications than plaintiff. Of the remaining files, none of the files represents a white teacher less qualified than plaintiff, employed in the areas of BD, LD, OH or EMR.

Conclusions of Law:

This Court has jurisdiction of this case pursuant to 42 U.S.C. § 1981 and 28 U.S.C. § 1343.

Although plaintiff does not seek relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the principles on the order and allocation of proof outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), are applicable to an action brought under 42 U.S.C. § 1981. Person v. J.S. Alberici Const. Co., Inc., 640 F.2d 916, 918 (8th Cir.1981). Plaintiffs ultimate burden of proof in a § 1981 case is that she must show defendant intentionally discriminated against her because of her race. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982).

In order to establish a prima facie case in a failure to promote action, plaintiff must show that (1) she belongs to a racial minority; (2) she applied and was qualified for the job she was seeking; (3) she was not promoted; (4) the employer hired white employees to perform the same position. See McDonnell Douglas Corp. v. Green, supra and Texas Department of Community Affairs v. Burdine, supra.

Plaintiff satisfies requirements (1), (3) and (4). One obstacle plaintiff must overcome in meeting the second requirement is that she did not file a second application in the Personnel Office of the Special School District until October, 1982. It is clear that plaintiff’s failure to file a second application is fatal to her claim as it concerns the time period from Jannuary, 1981 until October, 1982. Cf. Wright v. Stone Container Corp., 524 F.2d 1058, 1063 (8th Cir.1975). Plaintiff’s initial employment application was made part of her personnel file as was the practice with all employees of the Special School District. Plaintiff’s failure to file a second application precluded her from remaining in the applicant file for teaching positions.

Nevertheless, plaintiff has made a' prima facie case in that she sent her second application to the Personnel Office in October, 1982. Defendant also admitted that some teacher assistants were promoted even though they had not kept their applicant files active by writing the Personnel Office. The promotions without reapplication occurred when the teacher assistant would tell her supervisor of her interest in a teaching position for which she was qualified.

Once plaintiff has made a prima facie case, defendant has the burden to articulate a nondiscriminatory reason for not promoting plaintiff. McDonnell Douglas Corp. v. Green, supra; Texas Department of Community Affairs v. Burdine, supra. Defendant has met the burden by showing that plaintiff was not deemed as qualified as the applicants promoted ahead of her. In addition, the whites promoted without reapplying to the Personnel Office of the Special School District were deemed more qualified than plaintiff for the teaching positions they assumed.

Defendant presented the criteria by which applicants for a teaching job were judged. The criteria the interviewers used stressed the applicants’ ability to communicate effectively and to utilize diagnostic tests to help implement a teaching plan. Different interviewers at different times consistently rated plaintiff in the lower echelon of prospective teachers.

Once defendant has stated its reason for not promoting plaintiff, plaintiff must show by a preponderance of the evidence that defendant’s reason was merely a pretext for discrimination. Plaintiff has not shown that defendant’s stated reasons for not hiring plaintiff was pretextual. This Court cannot find that the interviewers’ evaluations of plaintiff’s abilities were in error. Section 1981 is designed to prevent intentional discrimination; plaintiff has failed to prove defendant discriminated against her. The Court hereby finds for the defendant and judgment will be entered in its favor.

      . Plaintiff waived her right to a jury trial in a memorandum filed in this Court on March 21, 1984.