author: JUNE L. GREEN, District Judge.

text:
    John F. “Jack” WALSH, et al., Plaintiffs, v. FORD MOTOR COMPANY, Defendant.
    Civ. A. No. 81-1998.
    United States District Court, District of Columbia.
    Feb. 13, 1986.
    See also, D.C., 588 F.Supp. 1513.

      Beverly C. Moore, Jr., Law Offices of Beverly C. Moore, Jr., Landon Gerald Dow-dey, Law Offices of Landon Gerald Dow-dey, Washington, D.C., Wallace J. Smith and Ben Sehiebel, Wallace J. Smith, Inc., Sacramento, Cal., Barry Schwartz, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., William H. McDonald, David A. Childers, John E. Price, and Robert M.N. Palmer, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, Mo., for plaintiffs.
    William T. Coleman, Jr., Richard C. Warmer, Carl R. Schenker, Jr. and John H. Beisner, O’Melveny & Myers, Washington, D.C. (Henry R. Nolte, Jr., James M. Mac-Nee, Ford Motor Co., Dearborn, Mich., of counsel), for defendant.
   OPINION

JUNE L. GREEN, District Judge.

This class action was brought against defendant Ford Motor Company (“Ford”) under the jurisdictional provisions of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. (1982) (“Magnuson-Moss” or “the Act”) . Plaintiffs seek damages, declaratory, and injunctive relief for breach of written and implied warranty, strict tort liability, and negligence because of allegedly defective automatic transmissions in certain types of motor vehicles manufactured by Ford. The complaint alleges that Ford’s 1976-1979, as well as certain 1980 model motor vehicles with FMX, C-3, C-4, or C-6 automatic transmissions, may slip into the reverse position while not being placed there by the driver.

In an opinion and order dated May 9, 1985, the Court conditionally certified three nationwide classes under Federal Rules of Civil Procedure 23(b)(3), 23(c)(1), and 23(c)(4). Walsh v. Ford Motor Co., 106 F.R.D. 378 (D.D.C.1985). In their motion for class certification, the plaintiffs also sought to certify a punitive damages class for claims arising under the Magnuson-Moss Act. The Court postponed consideration of a punitive damages class in its earlier opinion, instead requesting the parties to submit further briefing on the issue of whether punitive damages are obtainable on claims under Magnuson-Moss and on the issue of which law applies, if punitive damages do lie. Id. at 408-09. Now before the Court is plaintiffs’ renewed motion for certification of a punitive damages class. For the reasons stated herein, the Court concludes that punitive damages do not lie in this Magnuson-Moss action and, therefore, declines to certify a punitive damages class.

1. Class Certification In General

When determining whether it should grant certification to a class of plaintiffs, a court must not delve into the merits of the action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974); Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). A court is obliged to determine only whether the requirements of Rule 23 have been'satisfied. See Chestnut Fleet Rentals, Inc. v. Hertz Corp., 72 F.R.D. 541, 543 (E.D.Pa.1976) (“[T]he central issue raised in a motion for certification is whether a class action is appropriate, not the probability of plaintiffs’ success on the merits of the substantive claim.” (citing Eisen v. Carlisle & Jacquelin, 427 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732); Kahan v. Rosentiel, 424 F.2d 161, 169 (3d Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1878, 26 L.Ed.2d 290 (1970)).

The question of whether a class may be certified is left to the discretion of the district court. See, e.g., Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S.Ct. 2193, 2200, 68 L.Ed.2d 693 (1981). Further, Rule 23 determinations are made in a nonadver-sarial context. McCarthy v. Kleindienst, 741 F.2d 1406, 1421 (D.C.Cir.1984) (Mikva, J., concurring in part and dissenting in part). A court must determine, pursuant to the provisions of Rule 23, whether plaintiffs’ cause of action is suitable for resolution on a classwide basis. Id. at 1412 n. 6; see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n. 12, 98 S.Ct. 2454, 2458 n. 12, 57 L.Ed.2d 351 (1978).

II. Plaintiffs’ Punitive Damages Class Plaintiffs seek to certify the following class claim for punitive damages:

Punitive Damage Incidents:
All members of [the implied and written warranty classes and the personal injury class] including the following subclasses of such persons:
(a) pursuant to Rule 23(b)(3), all such persons claiming punitive damages directly under the Magnuson-Moss Act, and
(b) pursuant to Rule 23(b)(1)(B), all such persons, except those whose injuries occurred or whose Ford vehicles were purchased in Washington, Louisiana, Massachusetts, Connecticut, and Michigan, claiming punitive damages under state law, with further subclasses defined as necessary according to
(i) whether the person asserts a warranty, strict products liability, or negligence claim, and
(ii) whether the applicable state standard for an award of punitive damages is gross negligence or willful misconduct.

Plaintiffs’ Proposed Certification Order, June 13, 1983. . Because the Court has declined to certify the personal injury incidents putative class, punitive damages claims must arise solely from the implied and written warranty claims under the Magnuson-Moss Act. Walsh v. Ford Motor Co., 106 F.R.D. at 405-06.

Plaintiffs argue that punitive damages are obtainable under the Magnuson-Moss Act. They contend that, although the Mag-nuson-Moss Act does not expressly provide for punitive damages, the statutory language in section 2310(d)(1) encompasses punitive damages. That section provides that “... a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief....” (Emphasis added). Plaintiffs buttress this extrapolation of the remedies provision by asserting that “[h]ad Congress intended to exclude punitive damages, it would have done so with the same explicitness as it excluded personal injury liability.” Plaintiffs’ Reply to Opposition of Ford Motor Company to Plaintiffs’ Renewed Motion for Certification of a Punitive Damages Class (“Plaintiffs’ Reply”) at 1.

Further, plaintiffs, relying principally on Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1982), urge the Court •to apply a uniform federal damages standard in Magnuson-Moss cases. This uniform federal standard which would include the right to punitive damages “... would be applicable to nonclass as well as class actions and to actions brought in state as well as in federal courts.” Plaintiffs’ Reply at 6. Plaintiffs propose that the Court glean the uniform punitive damages standard from the majority of states which permit the award of punitive damages under certain circumstances in common law warranty actions. Plaintiffs’ Renewed Motion for Certification of the Punitive Damages Class (“Plaintiffs’ Motion”) at 10.

III. The Magnuson-Moss Act

A. Statutory Purpose

Since legislative history on the punitive damages question is entirely lacking, not to mention the paucity of case law on the topic, the Court will look to the evil that Magnuson-Moss was designed to remedy for guidance on this issue. This endeavor, however, poses a considerable challenge, as one court explained:

A literal reading of the Magnuson-Moss Act is only a departure' point for giving meaningful content to the statute which has been variously described as “disappointing,” “opaque”, and a product of “poor drafting”. A review of the legislative history gives but limited solace. That review is the legal equivalent of an archeological dig. Various consumer warranty bills were pending before the House and Senate for four years, during which each body defined, discarded, reintroduced and redefined concepts which in some fashion or another are related to the enacted legislation. Some provisions in the Act are vestigial reminders of concepts buried but not totally forgotten during the on-going legislative process. Both proponents and opponents of an expansive interpretation have cited compelling, to them, legislative history only dimly related to the language which finally emerged as law.

Skelton v. General Motors Corp. 500 F.Supp. 1181, 1184 (N.D.Ill.1980) (footnotes omitted). This caveat in mind, the Court will evaluate the availability of punitive damages in light of all the provisions of the Magnuson-Moss Act, as well as the purposes and legislative history of the Act.

The Magnuson-Moss Act was promulgated to increase consumer rights and protections by imposing minimum standards for manufacturers’ warranties and by providing various avenues for consumer redress. The vast amount of data that was adduced from the studies, proposals, and hearings which culminated in the Magnu-son-Moss Act demonstrated the existence of numerous problems with consumer warranties, including (1) excessive exclusions and disclaimers of liability, (2) inadequate warranty coverage, (3) consumer difficulty in obtaining warranty repairs, and (4) complex, often incomprehensible warranty language. See Task Force on Appliance Warranties and Service, Report on Appliance Warranties and Service (1969) (prepared by the Federal Trade Commission (“FTC”), Dept, of Commerce, Dept, of Labor, and Special Assistant to the President for Consumer Affairs), reprinted in part in 1974 U.S.Code Cong. & Ad.News 7702.

The Magnuson-Moss Act does not require any seller to give a warranty. When a seller offers a written warranty, however, the Magnuson-Moss Act requires that the warranty satisfy certain disclosure requirements and minimum federal standards. Sections 2302, 2303, 2304, 2308. The Magnuson-Moss Act also encourages consumers and warrantors to resolve their disputes without litigation by use of the “Informal Dispute Settlement Mechanisms” sanctioned by the FTC. Section 2310(a).

Furthermore, the Magnuson-Moss Act provides a new cause of action for a consumer who is damaged by the failure of a warrantor or supplier to comply with the Act or with the obligations under a written warranty, implied warranty, or service contract. Section 2310(d)(1). Not to be overlooked is section 2310(e) which provides that no private action for breach of a written or implied warranty may be brought “unless the person obligated under the warranty ... is afforded a reasonable opportunity to cure such failure to comply." Section 2310(e). If the warrantor has adopted an informal dispute resolution procedure that meets FTC requirements, however, the consumer need not afford the warrantor an opportunity to cure the defect, but must resort to the dispute settlement procedure before instituting suit. Section 2310(a)(3), (e). When the suit is brought as a class action, the duties are somewhat modified. A class suit may proceed “to the extent the court determines necessary to establish the representative capacity of the named plaintiffs,” .before the named plaintiffs need give the warrantor the opportunity to cure or resort to the dispute settlement procedure. Id.

Although the right of action under the Act is a federal right, the statute provides that most private actions are to be brought in state court under section 2310(d)(1)(A); see also S.Rep. No. 151, 93d Cong., 1st Sess. 23 (1973). In order for a federal court to have jurisdiction under the Magnu-son-Moss Act, the plaintiffs must meet certain conditions. Section 2310(d). These threshold requirements were intended to “avoid trivial or insignificant actions being brought as class actions in the federal courts.” H.R.Rep. Rep. No. 1107, 93d Cong., 2d Sess. 42 (1974), U.S.Code Cong. & Admin.News 1974, p. 7724. Since the consumer may recover all litigation expenses, including attorney fees, in a successful Magnuson-Moss action, bringing a warranty action as a matter of federal rather than state law has advantages. Section 2310(d)(2).

It is important to note that “[t]he federal action is parallel to and does not supplant state warranty remedies because the Act provides it does not restrict ‘any right or remedy of any consumer under State law or any other Federal law.’ ” Schroeder, Private Actions under the Magnuson-Moss Warranty Act, 66 Calif.L.Rev. 1, 1 (1978) (quoting 15 U.S.C. § 2311(b)(1)). Some provisions of the Magnuson-Moss Act refer specifically to state law. For instance, section 2301(7) defines an implied warranty as a liability “arising under state law.” See also Walsh v. Ford Motor Co., 588 F.Supp. at 1525. (“... State privity rules do apply when determining the existence of an implied warranty cause of action under Magnuson-Moss.” (and cases cited therein)).

In passing the Magnuson-Moss Act, Congress sought to provide an effective remedial mechanism for consumer claims involving relatively small amounts of damages. S.Rep. No. 151, 93d Cong., 1st Sess. 7 (1973); H.R.Rep. No. 93-1107, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Adm.News 7702, 7724; Gorman v. Saf-T-Mate, 513 F.Supp. 1028, 1033 (N.D. Ind. 1981). This design is clearly manifested in section 2310(d)(2), which authorizes the Court to award a reasonable sum to defray costs and attorney fees as part of a judgment in favor of a consumer. Furthermore, the recissionary provisions of section 2310(a), as well as the inability to obtain relief for personal injury tort claims under Magnuson-Moss, indicate plainly the remedial nature of the Magnuson-Moss Act. See Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1068 (5th Cir.1984) (Section 2311(b)(2) of the Magnuson-Moss Act prohibits claims arising from personal injury based solely on a breach of warranty, express or implied); see also Gorman v. Saf-T-Mate, 513 F.Supp. at 1033 (The “legislative purpose of [section] 2310(d) [of the Magnuson-Moss Act] is to provide a mechanism for consumer actions involving direct damages; it was not designed to reach personal injury claims.”).

B. Magnuson-Moss Is Based In Contract Law

As this Court noted in an earlier opinion in this case, “Magnuson-Moss is strictly a warranty statute based in contract law. When Congress passed the Act, it incorporated [Uniform Commercial Code (“UCC”)]-based State warranty law and not State tort law.” Walsh v. Ford Motor Co., 588 F.Supp. at 1527; H.R.Rep. No. 1107, 93d Cong., 2d Sess. 6, reprinted in 1974 U.S.Code Cong. & Ad.News 7702, 7707. The central purpose of damages in actions for breach of contract or warranty is to place the plaintiff in the same position he would have occupied had the contract not been breached. See, e.g., 5A Corbin, Corbin on Contracts § 992 at 5 (1964); U.C.C. § 1-106(1). Consequently, punitive damages are not awarded for mere breach of contract, regardless of the motives or conduct of the breaching party. Id; see generally Simpson, Punitive Damages for Breach of Contract, 20 Ohio St. L.J. 284 (1959).

Consistent with these well-established principles, nowhere in the Magnuson-Moss Act is mention made of punitive damages. Given the general unavailability of punitive damages in contract and warranty cases, it could be assumed that Congress would have made specific reference to punitive damages had they intended them to lie in Magnuson-Moss actions. Indeed, “[i]n an act which specifically discusses attorney’s fees and the kinds of claims permitted and prohibited, this absence of language could lead a court to conclude that Congress did not intend to have punitive damages lie in Magnuson-Moss causes of action.” Walsh v. Ford Motor Co., 106 F.R.D. at 406.

The Court, however, need not speculate. It is clear that the Magnuson-Moss Act is primarily a remedial statute designed to protect consumers from deceptive warranty practices. Skelton v. General Motors Corp., 660 F.2d 311, 313-14 (7th Cir.1981). Punitive damages are generally unavailable in such contract-based schemes as the Mag-nuson-Moss Act.

This general rule is subject to exceptions, though, as plaintiffs correctly point out. Punitive damages may be awarded, for example, when the conduct constituting the breach amounts to an independent tort or is accompanied by fraudulent conduct. RESTATEMENT (SECOND) OF CONTRACTS § 355 (1979); see also, Sullivan, Punitive Damages in the Law of Contract: The Reality and the Illusion of Legal Change, 61 Minn.L.Rev. 207 (1977). Plaintiffs contend that this exception to the general prohibition of punitive damages in contract and warranty actions is encompassed by the open-ended language of section 2310(d)(1) which provides “for damages and other legal and equitable relief.” To bolster this contention, plaintiffs survey state law on this issue and conclude that out of 51 jurisdictions, “45 or 46 ... appear to agree generally with the RESTATEMENT position.” Plaintiffs’ Motion at 10.

In passing the Magnuson-Moss Act, Congress did not intend to nullify the authority found in the U.C.C. as regards warranties. H.R.Rep. No. 1107, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News, 7702, 7706. Section 1-106(1) of the U.C.C. addresses remedies:

The remedies provided by the Act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential nor penal damages may be had except as specifically provided in this Act or by other rule of law.

Thus, it is that the Court has difficulty reconciling section 1-106(1) of the U.C.C. with plaintiffs’ reading of section 2310(d)(1) of the Magnuson-Moss Act.

The U.C.C.'s sections governing damages for breach of warranty (§§ 2-714, 2-715) do not provide for punitive damages. Neither does the Magnuson-Moss Act address the issue of punitive damages. While various states do permit punitive damages when a breach of warranty is also found to constitute “independently” tor-tious conduct, the variety of approaches to punitive damages among the states indicates less consensus on the issue than controversy. See, e.g., Brinks, Inc. v. City of New York, 717 F.2d 700, 704-05 (2d Cir.1983); American Laundry Machinery Industries v. Horan, 412 A.2d 407, 416-17 (Md.Ct.Spec.App.1980). See also Feinstein v. Firestone Tire & Rubber Co., 535 F.Supp. 595, 605, n. 14 (S.D.N.Y.1982) (noting that “the doctrine of punitive damages takes different forms, and requires different showings, in different states.”); see generally K. Redden, Punitive Damages § 5.2 (1980). While the Court has concluded that the Magnuson-Moss Act does not contemplate the award of punitive damages, it is also the case that Magnuson-Moss does not restrict “any right or remedy of any consumer under State law or any other Federal law.” Section 2311(b)(1).

C. Federal-State Warranty Law Overlap

Congress was well aware that it faced something less than a clean slate when it confronted the problems of consumer warranties. Section 2311 attempts to delineate the extent to which Magnuson-Moss affects the complex pattern of existing state and federal law. As noted, section 2311(b)(1) preserves the rights and remedies under state and federal law. The consumer is thus free to ignore Magnuson-Moss and seek redress through more traditional avenues, such as breach of warranty, fraud, or recission. The deference paid by section 2311(b)(2) to state laws regulating liability for personal injury and consequential damages is also in keeping with this contract-based statute’s remedial purpose. Supra at 1523.

So too, section 2310(d)(1) was drafted with the intention of preserving whatever state law remedy might be available. In other words, if suit is brought under state law, state law controls the nature of relief to which the consumer is entitled. This reading is in keeping with the language of section 2310(d)(1)(A), channeling most private actions into state court. See also S.Rep. No. 151, 93d Cong., 1st Sess. 23 (1973).

The Court concludes that plaintiffs’ expansive reading of section 2310(d)(1) is inconsistent with the structure and purpose of the Magnuson-Moss Act. The crucial point, as one commentator has observed, is that “[t]he Magnuson-Moss Warranty Act adds a new layer of federal warranty law to existing state warranty doctrines. In a few instances, as in the case of implied warranty disclaimers, the federal act supplants state law. For the most part, however, the federal and state doctrines coexist.” Schroeder, Private Actions Under The Magnuson-Moss Warranty Act, 66 Calif.L.Rev. at 35; cf. 15 U.S.C. § 2301(7) (specifically recognizing implied warranties under state law).

Plaintiffs brought this suit in federal court pursuant to the special jurisdictional provisions of the Magnuson-Moss Act. Section 2310(d)(1)(B). The Court is not free to wander beyond the parameters of the statute into areas of traditional state concern, such as punitive damages. Overseas National Airways, Inc. v. United States, 766 F.2d 97, 100-01 (3d Cir.1985) (citing Executive Jet Aviation Inc. v. City of Cleveland, 409 U.S. 249, 272-73, 93 S.Ct. 493, 506-07, 34 L.Ed.2d 454 (1972) (and cases therein)). See Keene Corp. v. Insurance Company of North America, 597 F.Supp. 934, 938-39 (D.D.C.1984) (punitive damages law is an area of special concern to States). For whatever reasons, the Congress envisioned an overlapping, if not coextensive, body of warranty law. The resulting complexity occasioned by the interplay between the federal and state systems is no basis for displacing state law on a narrow aspect of punitive damages when the Act is silent on the issue. See Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934) (federal courts should confine their own jurisdiction to the precise limits which a federal statute has defined).

IV. Assessment of Punitive Damages Is Chiefly a State Concern

The Court, by its ruling today, is not saying that punitive damages are never recoverable under the Magnuson-Moss Act. Indeed, several courts have refused to rule out recovery of punitive damages under the Magnuson-Moss Act. See Boelens v. Redman Homes, Inc., 748 F.2d at 1069; Saval v. BL LTD, 710 F.2d 1027, 1033 (4th Cir.1983); Schafer v. Chrysler Corp., 544 F.Supp. 182, 185 (N.D.Ind.1982); Lieb v. American Motors Corp., 538 F.Supp. 127, 132-33 (S.D.N.Y.1982); But see Novosel v. Northway Motorcar Corp., 460 F.Supp. 541, 545 (N.D.N.Y.1978) (intimating that punitive damages are never recoverable under Magnuson-Moss). These rulings, however, were limited to Magnuson-Moss actions for breach of warranty brought under state law. By contrast, the present action is brought as a federal action pursuant to the provisions of section 2310(d)(1)(B).

At the same time, the issue of certifying a punitive damages class under the Act does not lend itself to a simple examination of the choice of law rules of the forum. Walsh v. Ford Motor Co., 106 F.R.D. at 407-08. Given the size and nature of this class action, not to mention a potential punitive damages class, “the Court cannot ignore the national interests at issue in this case by virtue of the Federal Magnuson-Moss Warranty Act.” Id. at 408. Thus, no one forum may have a superior interest in having this matter adjudicated according to its punitive damages law.

Likewise, plaintiffs’ argument that a uniform Federal law, derived from a majority of all states, should govern the availability of punitive damages under the Act must fail. Plaintiffs cite Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632, as support for this proposition. In Smith the Supreme Court found that punitive damages are available under Section 1983, Title 42, United States Code. The Court made this conclusion despite the lack of legislative history on the issue. Justice Brennan, writing for the Court, stated that “[i]n the absence of more specific guidance, we look first to the common law of torts ... with such modification or adaption as might be necessary to carry out the purpose and policy of the statute.” The Court proceeded to review state standards for claims of punitive damages in tort cases in order to develop a federal standard for such damages. See id. at 48, 103 S.Ct. at 1639.

The Smith decision cannot be extended to this case for two reasons. First, section 1983, derived from the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1979), provides a federal means of redress when state officials have violated an individual’s civil rights. That the Court established a federal standard for punitive damages under a statute designed to protect “federally guaranteed rights” does not support federalization of punitive damages under a statute that expressly incorporates state law. Smith v. Wade, 461 U.S. at 48, 103 S.Ct. at 1639. Second, punitive damages are fundamentally based in tort law, and section 1983 “was intended to create ‘a species of tort liability’ in favor of persons deprived of federally secured rights.” Id. at 34, 103 S.Ct. at 1628 (quoting Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042, 1046, 55 L.Ed.2d 252 (1978)). By contrast, Magnu-son-Moss is founded on contract law; punitive damages as a rule are not available in contract or warranty actions.

Moreover, since Erie R. Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), it has been well settled that “federal courts do not have the general law-making powers commonly exercised by state courts.” Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1323 (5th Cir.1985). In Jackson the Court refused to create a federal common law governing punitive damages in asbestos litigation because there was no “ ‘uniquely federal interest’ ... relatpng] to an articulated congressional policy or directly implicating] the authority and duties of the United States as sovereign.” Id. at 1324-25.

V. Conclusion

Ultimately, plaintiffs’ argument is based upon a liberal reading of section 2310(d)(1) (“... may bring suit for damages and other legal and equitable relief_”). In Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 2436, 41 L.Ed.2d 374 (1974), the Supreme Court cautioned, “When ‘interpreting a statute, the Court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute ... and the objects and policy of the law....’” (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194, 15 L.Ed. 595 (1857)). In light of the legislative history and remedial purpose of the Magnuson-Moss Warranty Act, the Court finds that certification of plaintiffs’ punitive damages class would be inappropriate.

      . This opinion will cite to Title 15 in the form, "section —.”

      . For a complete history of this litigation, 'see the Court’s opinion in Walsh v. Ford Motor Co., 588 F.Supp. 1513 (D.D.C.1984).

      . See Second Amended Complaint ¶¶ 33, 36.


source: Caselaw Access Project

author: YOUNG, District Judge.

license: Public Domain

text:
    CONCORD AUTO AUCTION, INC. and E.L. Cox Associates, Inc., Plaintiffs, v. Lawrence H. RUSTIN, as he is Administrator of the Estate of E. Leroy Cox, Defendants.
    Civ. A. No. 84-3659-Y.
    United States District Court, D. Massachusetts.
    Feb. 13, 1986.

      David S. Rosenthal, Hutchins & Wheeler, Boston, Mass., for plaintiffs.
    Rosemary Wilson, Herrick & Smith, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

Close corporations, Concord Auto Auction, Inc. (“Concord”) and E.L. Cox Associates, Inc. (“Associates”) brought this action for the specific performance of a stock purchase and restriction agreement (the “Agreement”). Concord and Associates allege that Lawrence H. Rustin (“Rustin”) as the administrator of E.L. Cox’s estate (“Cox”) failed to effect the repurchase of Cox’s stock holdings as provided by the Agreement. The Court has jurisdiction pursuant to 28 U.S.C. 1332(a)(1) because Rustin, a Connecticut citizen, is properly diverse to Concord and Associates, Massachusetts corporations with principal places of business in the Commonwealth.

Rustin alleges in his defense that Concord and Associates are not entitled to specific performance because 1) they have breached the Agreement which they seek to enforce; 2) they have unclean hands because they failed to effect a review and revaluation of the shares; 3) the value of the stock increased so substantially that specific enforcement would be unfair and unjust to Cox’s estate; and 4) specific performance is conditional upon an annual review of share value to be held no later than the third Tuesday of February, here February 21, 1984.

Rustin alleges that all parties intended an annual revaluation, that Betsy Cox Powell (“Powell”) and Nancy Cox Thomas (“Thomas”), sisters of the decedent Cox, as the only other shareholders in both Concord and Associates, knew that a revaluation would result in a higher price and failed to effect the annual review required by the Agreement, that this failure breached the Agreement and was “undertaken with the intent and effect of depriving the estate of E. Leroy Cox from receiving fair value for its shares of Concord and Associates.” Rustin further alleges that by failing to establish new prices, Powell in particular as well as Thomas breached their fiduciary duties to the estate of Cox in light of their direct pecuniary interest in the value of the shares. Finally, Rustin alleges that the actions of Powell, Thomas, Concord and Associates constitute a willful violation of Mass.Gen.Laws, ch. 93A, § 11.

Concord and Associates move for summary judgment, specific performance of the Agreement and dismissal of the counterclaims. Pursuant to Fed.R.Civ.P. 56, the Court will treat the motion for dismissal as a motion for summary judgment because the Court has gone beyond the pleadings to consider various affidavits and exhibits. For the reasons set forth below, the Court allows the motions for summary judgment.

I. Background

Both Concord and Associates are Massachusetts Corporations. Concord operates a used car auction for ear dealers, fleet operators, and manufacturers. Associates operates as an adjunct to Concord’s auction business by guaranteeing checks and automobile titles. Both are close corporations with the same shareholders, all siblings: Cox (now his estate), Powell, and Thomas. At all times relevant to this action, each sibling owned one-third of the issued and outstanding stock in both Concord and Associates.

To protect “their best interests” and the best interests of the two corporations, the three shareholders entered into a stock purchase and restriction agreement on February 1, 1983. The Agreement provides that all shares owned by a shareholder at the time of his or her death be acquired by the two corporations, respectively, through life insurance policies specifically established to fund this transaction. This procedure contemplates the “orderly transfer of the stock owned by each deceased Shareholder.” At issue in the instant action are the prerequisites for and effect of the repurchase requirements as set forth in the Agreement.

This dispute arises because Rustin failed to tender Cox’s shares as required by Paragraph 2, Death of Shareholder. Rustin admits this but alleges a condition precedent: that Powell, specifically, and Thomas failed to effect both the annual meeting and the annual review of the stock price set in the Agreement as required by Paragraph 6, Purchase Price: “Each price shall be reviewed at least annually no later than the annual meeting of the stockholders ... (commencing with the annual meetings for the year 1984) ...,” here February 21, 1984. Rustin implies that, had the required meeting been held, revaluation would or should have occurred and that, after Cox’s accidental death in a fire on March 14, 1984, Powell in particular as well as Thomas were obligated to revalue the stock prior to tendering the repurchase price.

There is no dispute that the By-Laws call for an annual meeting on the third Tuesday of February, here February 21, 1984. There is no dispute that none took place or that, when Cox died, the stocks of each corporation had not been formally revalued. No one disputes that Paragraph 6 of the Agreement provides for a price of $672.00 per share of Concord and a price of $744.00 per share for Associates. This totals $374,976 which is covered by insurance on Cox’s life of $375,000. There is no substantial dispute that the stock is worth a great deal more, perhaps even twice as much. No one seriously disputes that Paragraph 6 further provides that:

... all parties may, as a result of such review, agree to a new price by a written instrument executed by all the parties and appended to an original of this instrument, and that any such new price shall thereupon become the basis for determining the purchase price for all purposes hereof unless subsequently super-ceded pursuant to the same procedure. The purchase price shall remain in full force and effect and until so changed.

Rustin asserts that the explicit requirement of a yearly price review “clashes” with the provision that the price shall remain in effect until changed. He argues a trial is required to determine the intent of the parties:

The question then arises, presenting this Court with a material issue of fact not susceptible to determination on a motion for summary judgment: Did the parties intend, either to reset, or at least to monitor, yearly, the correspondence between the Paragraph 6 price and the current value of the companies? If so, who, if anyone, was principally responsible for effecting the yearly review required by the Agreement, and for insuring an informed review?

In answering these questions the Court first outlines its proper role in the interpretation of this contract.

II. Discussion

A Court sitting in diversity will apply the substantive law of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), here Massachusetts. In Massachusetts as elsewhere, absent ambiguity, contracts must be interpreted and enforced exactly as written. Freelander v. G. & K. Realty Corp., 357 Mass. 512, 515, 516, 258 N.E.2d 786 (1970). Where the language is unambiguous, the interpretation of a contract is a question of law for the court. Edwin R. Sage v. Foley, 12 Mass.App. 20, 28, 421 N.E.2d 460 (1981); see Robert Industries, Inc. v. Spence, 362 Mass. 751, 755, 291 N.E.2d 407 (1973). Further, contracts must be construed in accordance with their ordinary and usual sense. Zarum v. Brass Mill Materials Corp., 334 Mass. 81, 84, 134 N.E.2d 141 (1956); Edwin R. Sage v. Foley, 12 Mass.App. at 28, 421 N.E.2d 460.

Contrary to Rustin’s assertion, the Court in applying these standards holds that there is no ambiguity and certainly no “clash” between the dual requirements of Paragraph 6 that there be an annual review of share price and that, absent such review, the existing price prevails. When, as here, the Court searches for the meaning of a document containing two unconditional provisions, one immediately following the other, the Court favors a reading that reconciles them. Kates v. St. Paul Fire & Marine Ins. Co., 509 F.Supp. 477, 485 (D.Mass.1981). .The Court rules that the Agreement covers precisely the situation before it: no revaluation occurred, therefore the price remains as set forth in the Agreement. This conclusion is reasonable, for the Agreement is not a casual memorialization but a formal contract carefully drafted by attorneys and signed by all parties.

Moreover, the Court interprets Paragraph 2 to provide, in unambiguous terms:

“In the event of the death of any Shareholder subject to this agreement, his respective ... administrator ... shall, within sixty (60) days after the date of death ... give written notice thereof to each Company which notice shall specify a purchase date not later than sixty (60) days thereafter, offering to each Company for purchase as hereinafter provided, and at the purchase price set forth in Paragraph 6, all of the Shares owned on said date by said deceased Sharehold-er_” [Emphasis by the Court].

Rustin, therefore, was unambiguously obligated as administrator of Cox’s estate to tender Cox’s shares for repurchase by Concord and Associates. His failure to do so is inexcusable unless he raises cognizable defenses.

All of Rustin’s defenses turn on two allegations: that his performance is excused because the surviving parties failed to review and to adjust upward the $374,-976 purchase price. Rustin contends that the parties meant to review the price per share on an annual basis. No affidavit supports this assertion, nor does any exhibit. In fact, absent any evidence for this proposition, Rustin’s assertion is no more than speculation and conjecture. While Rustin contends that the failure to review and revalue constitutes “unclean hands” and a breach of fiduciary duty which excuses his nonperformance, he places before the Court only argument not facts.

It simply does not follow that because a meeting was not held and the prices were not reviewed that a trial of the parties' intentions is required. The Agreement is the best evidence of the parties’ intent. Although the text of the Agreement provides that share price “shall” be reviewed “at least annually,” the Agreement also states that “The purchase price shall remain in full force and effect unless and until so changed.”

Even giving all intendments to Rustin, the “favorable inferences” generally afforded parties opposing summary judgment must be reasonable and based on facts, not conjecture. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); see also Buckley v. American Honda Motor Co., Inc., 780 F.2d 1, 2 (1st Cir.1985). There must be sufficient evidence supporting the claimed factual dispute to require a trial to resolve the parties’ different versions; the evidence manifesting the dispute must be substantial. Hahn v. Sargent, 523 F.2d at 464. Although, as the party opposing the motion, Rustin is entitled to inferences from the evidence in the records, Rogen v. Ilikon Corporation, 361 F.2d 260, 266 (1st Cir.1966), he “is not entitled to build a case on the gossamer threads of whimsey, speculation and conjecture.” Manganaro v. Delaval Separator Co., 309 F.2d 389, 393 (1st Cir.1962). Thus, conclusory allegations unsupported by facts, do not create an issue which should be reserved for trial. Over the Road Drivers Inc. v. Transport Insurance Co., 637 F.2d 816, 818-819 (1st Cir.1980); Maiorana v. MacDonald, 596 F.2d 1072, 1078 n. 7 (1st Cir.1979); Massaro v. Vernitron Corp., 559 F.Supp. 1068, 1973 (D.Mass.1983). Rustin presents no evidence that would tend to suggest that Cox intended to depart from or rescind the Agreement. He presents only bare allegations that a revaluation would have occurred had the annual meeting been held.

Even if competent evidence adduced at trial would support Rustin’s allegations, his proposition would of necessity require judicial intervention, a course this Court does not favor. Rustin produces not a shred of evidence that the parties intended that a court should intercede to set the share price in the event the parties failed to do so themselves. Every first year law student learns that although the courts can lead an opera singer to the concert hall, they cannot make her sing. Lumley v. Guy, 118 Eng.Rep. 749 (1853). While this Court will specifically enforce a consensual bargain, memorialized in an unambiguous written document, it will not order the revision of the share price. Such intrusion into the private ordering of commercial affairs offends both good judgment and good jurisprudence. Moreover, the record before the Court indicates that the parties fully intended what their competent counsel drafted and they signed.

Moreover, the nucleus of Rustin’s premise is that somehow Powell should have guaranteed the review and revision of the share prices. On the contrary, nothing in the record indicates that a reasonable trier of fact could find that Powell’s duties and responsibilities included such omnipotence. More to the point, the By-Laws suggest that several individuals shared the responsibility for calling the required annual meeting: “In case the annual meeting for any year shall not be duly called or held, the Board of Directors or the President shall cuase (sic) a special meeting to be held_” Pursuant to the By-Laws, Cox himself had the power, right, and authority to call a meeting of the stockholders of both companies, in order to review the price per share — or for any other purpose for that matter.

Furthermore, nothing in the record indicates that somehow Powell, Thomas, Concord, or Associates was charged with the duty of raising the share price. In fact, this is discretionary and consensual: “all parties may, as a result of such review, agree to a new price by a written instrument executed by all parties_” Nowhere can the Court find any affirmative duty to guarantee either an annual meeting or a share price revision. To fault Powell for not doing by fiat what must be done by consensus credits Powell with powers she simply does not have. The mere fact that, as a shareholder of Concord and Associates, Powell benefits from the enforcement of the Agreement at the $374,976 purchase price does not, as matter of law, create an obligation on her part to effect a review or revision of the purchase price. One cannot breach a duty where no duty exists, and Rustin cannot manufacture by allegation a duty where neither the Agreement nor the By-Laws lends any support.

Applying the above analysis, the Court discounts three of Rustin’s defenses as meritless: that specific performance is not warranted because Concord and Associates breached the Agreement they seek to enforce; that they have unclean hands because they failed to effect a review and revaluation of the shares; and that specific performance is conditional upon an annual review of share value to be held no later than the third Tuesday of February. The record demonstrates no evidence that share transfer is conditional, rather it appears absolute and automatic. Absent a duty to “guarantee” the occurrence of the annual meeting or the “review,” the Court cannot find that Powell’s failure, if any, to upgrade the share price constitutes a fiduciary breach.

Of Rustin’s fourth defense, that the value of the stock increased so substantially that specific enforcement would be unfair and unjust to Cox’s estate, little need be said. This defense as well as Rustin’s counterclaims rest on the allegation that Powell, in particular, and Thomas “knew” that a revaluation would result in a higher price and “failed to effect an annual review.” Of Powell, Rustin argues that she had a “special responsibility” to effect a review of the purchase price because her siblings looked to her for financial expertise and to call a meeting. Nowhere is this “special responsibility” supported by the Agreement or the By-Laws. Rustin also implies that the sisters “knew” that failure to revalue would inure to their benefit. This presumes they knew that Cox would die in an accidental fire three weeks after the deadline for the annual meeting. To call this preposterous understates it, for nothing immunized the sisters from an equally unforeseeable accident. Rustin’s argument withers in the light of objectivity to a heap of conclusory straws.

Rustin goes on to argue that the sisters had a fiduciary duty to revalue the shares after Cox’s death and before tender. Nowhere in the Agreement is there the slightest indication they were so obligated. Nowhere is there evidence of willfulness, intent to deceive, or knowing manipulation. As a result, Rustin’s counterclaim that the Companies, Powell, or Thomas violated Mass.Gen.Laws, ch. 93A, § 11 must fail.

Agreements, such as those before the Court, “among shareholders of closely held corporations are common and the purpose of such contracts are clear.” Brigham v. M & J Corporation, 352 Mass. 674, 678, 227 N.E.2d 915 (1967). Moreover, such agreements are valid, bind the stockholder and his administrator or executor, and may be specifically enforced. Donahue v. Rodd Electrotype Company of New England, Inc., 367 Mass. 578, 598, 328 N.E.2d 505 (1975), as limited by Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 848-852, 353 N.E.2d 657 (1976); Smith v. Atlantic Properties, Inc., 12 Mass.App. 201, 205-206, 422 N.E.2d 798 (1981). See Brigham v. M & J Corporation, 352 Mass, at 678-682, 227 N.E.2d 915; New England Trust Co. v. Abbott, 162 Mass. 148, 154-155, 38 N.E. 432 (1894); see also Renberg v. Zarrow, 667 P.2d 465, 470 (Okla.1983).

The validity of such agreements will be upheld absent any fraud, overreaching, undue influence, duress, or mistake at the time the deceased entered into the agreement, these conditions rendering the agreement void. New England Trust Co. v. Abbott, 162 Mass, at 155, 38 N.E. 432; see Renberg v. Zarrow, 667 P.2d at 470. Thus “fairness” and “good faith” in a closely held corporation generally means that each stockholder must have an equal opportunity to sell his or her shares to the corporation for an identical price. Donahue v. Rodd Electrotype Company of New England, Inc., 367 Mass, at 598, 328 N.E.2d 505. The effect of the Agreement is “blind”: regardless of who dies first, his or her administrator is required to sell the shares held to the corporations by set procedure for a set price. These circumstances are “fair”: “[T]he stipulated price provision wherein no one knows for certain at the time the price is set whether he is to be a buyer or a seller is inherently fair and provides mutuality of risk.” Renberg v. Zarrow, 667 P.2d at 471.

Moreover, specific performance of an agreement to convey will not be refused merely because the price is inadequate or excessive. New England Trust Co. v. Abbott, 162 Mass, at 155, 38 N.E. 432; see Lee v. Kirby, 104 Mass. 420, 430 (1870); Allen v. Biltmore Tissue Corp., 2 N.Y.2d 534, 543, 161 N.Y.S.2d 418, 141 N.E.2d 812 (1957) (“The validity of the restriction on transfer does not rest on any abstract notion of intrinsic fairness of price. To be invalid, more than mere disparity between option price and current value of the stock must be shown”); Renberg v. Zarrow, 667 P.2d at 470 (“In the absense of fraud, overreaching, or bad faith, an agreement between the stockholders that upon the death of any of them, the stock may be acquired by the corporation is binding. Even great disparity between the price specified in a buy-sell agreement and the actual value of the stock is not sufficient to invalidate the agreement.”) The fact that surviving shareholders were allowed to purchase Cox’ shares on stated terms and conditions which resulted in the purchase for less than actual value of the stock does not subject the agreement to attack as a breach of the relation of trust and confidence, there being no breach of fiduciary duty. See id. at 472.

Rather than evidence of any impropriety, the Court rules that the purchase prices were carefully set, fair when established, evidenced by an Agreement binding all parties equally to the same terms without any indication that any one sibling would reap a windfall. The courts may not rewrite a shareholder’s agreement under the guise of relieving one of the parties from the hardship of an improvident bargain. Id. at 471 (citations omitted). The Court cannot protect the parties from a bad bargain and it will not protect them from bad luck. Cox, the party whose estate is aggrieved, had while alive every opportunity to call the annual meeting and persuade his sisters to revalue their stock. Sad though the situation be, sadness is not the touchstone of contract interpretation.

Rustin’s defenses inadequate and his counterclaims meritless, what remains is the conclusion that all parties, including Cox, failed to revise the $374,976 purchase price. Therefore, the price remains unchanged. The Court rules that it cannot be said that Concord, Associates, Powell, or Thomas breached a fiduciary duty, failed to fulfill a condition precedent, or come before the Court with unclean hands.

III. Conclusion

In the absence any genuine issues of material fact, Concord and Associates are entitled to judgment as matter of law. The Agreement shall be specifically enforced. Rustin’s counterclaims are dismissed and, for the reasons set forth above, the Court ALLOWS Concord’s and Associates’ motions for summary judgment on all matters. Rustin must sell the Cox shares for the $374,976 purchase price to which all parties agreed. Rustin is hereby ORDERED to:

(1) Deliver the certificates for the Cox shares fully endorsed for purchases pursuant to paragraphs 2 and 6 of the February 1, 1983 Agreement no later than thirty days after the date of this order.
(2) Accept a purchase price of $672.00 per share of Auction and $744.00 per share of Associates as set forth in paragraph 6 of the Agreement.

Beyond these specifications, nothing in this Order shall be construed to modify or invalidate any provision set forth in the Agreement. As a result, all parties must comply with each and every provision of the Agreement, even those not specifically discussed herein.

SO ORDERED.


author: OWENS, Chief Judge.

text:
    C.D. JOINER, on Behalf of himself and others similarly situated, Plaintiffs, and United States of America, Plaintiff-Intervenor, v. CITY OF MACON, Defendant.
    Civ. A. No. 79-287-MAC.
    United States District Court, M.D. Georgia, Macon Division.
    Feb. 13, 1986.

      David L. Mincey, Macon, Ga., Linda R. Hirschman, J. Peter Dowd, Chicago, Ill., for plaintiffs.
    W. Warren Plowden, Jr., Macon, Ga., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

OWENS, Chief Judge.

1. This action was brought pursuant to the Fair Labor Standards Act, 29 U.S.C.A. §§ 201-219 (West 1985)(“FLSA”) by plaintiff transit employees seeking backpay for unpaid overtime compensation, liquidated damages, prejudgment interest, costs, and attorney’s fees.

HISTORY OF THIS LITIGATION

2. Plaintiffs Joiner and others (“plaintiffs”) who filed consents to sue in this action have been employed by the City of Macon transit system (“defendant”) at all times material to this action.

3. Upon cross motions for summary judgment filed by the parties, this court held on April 27, 1981:

... it cannot be said that Macon Transit System is an integral operation in an area of traditional governmental functions which would be exempted from the requirements of the FLSA.

Accordingly, the overtime provisions of the FLSA were deemed to apply to Macon’s transit system and the plaintiffs were deemed entitled to judgment on liability as a matter of law. That decision was affirmed in Joiner v. City of Macon, 699 F.2d 1060 (11th Cir.1983). Thereafter defendant’s petition for writ of certiorari was denied by the Supreme Court of the United States on March 4, 1985, without explanation or comment. Joiner v. City of Macon, — U.S. —, 105 S.Ct. 1391, 84 L.Ed.2d 781 (1985).

4. Defendant’s petition for writ of cer-tiorari was pending because of the Supreme Court’s consideration and decision on February 19, 1985, in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. —, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) {“Garcia”). In Garcia the Supreme Court overruled its earlier decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976)(“National League”) and “rejected], as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial ‘appraisal of whether a particular governmental function is ‘integral’ or ‘traditional,’ ” Garcia, 105 S.Ct. at 1016, and held “...that Congress’ action in affording [public] employees the protections of the wage and hour provisions of the FLSA contravened no affirmative limit on Congress’ power under the Commerce Clause,” id. at 1020.

5. Thereafter defendant moved this court to reexamine its April 27, 1981, summary judgment opinion on the issue of liability. On August 30, 1985, this court, denying such motion, ruled:

If the Supreme Court were of the opinion that Garcia required a reconsideration of this Court’s opinion it would have so stated in its order. Having failed to so state the Supreme Court’s denial meant that the City of Macon lost its final opportunity to overturn the decision of this court and the Eleventh Circuit Court of Appeals.

FINDINGS OF FACT

6. Defendant’s payroll records reveal, and accordingly there is no dispute that since at least December 20, 1977, each plaintiff except C.W. McCoy worked numerous work weeks for Macon in excess of forty hours per week for which they were paid only their regular straight time rate of pay. Plaintiffs were not paid one and one-half their regular rate of pay for each hour worked in excess of forty hours per week. The parties have reviewed Macon’s payroll data and have stipulated to the hours worked and rates of pay for each pay period, from which each party has submitted to the court their respective calculations of back pay due.

The parties continue to be in dispute over whether plaintiffs Griffin, Bone, W. Jackson and Kitchens are exempt as executive or administrative personnel. See 29 U.S. C.A. § 213(a)(West 1965). The parties are given leave for 90 days to engage in discovery in regard to those issues. Those issues will then be resolved by the court.

7.In order to determine the period of time for which Macon is liable to plaintiffs and the appropriate back pay, liquidated damages, and other relief, it will be necessary to review the pertinent history of the application of FLSA to public transit employees.

a. In 1966 Congress extended FLSA coverage to state and local government employees except for drivers, operators, and conductors in the mass-transit industry; however, even these exceptions were removed by Congress in 1974. Congress’ application of FLSA to such public employees was ruled to be within Congress’ power in Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968).

b. Since March 15, 1973, defendant has operated a public transit system in Macon. Prior thereto the transit system was privately operated by Bibb Transit Company, a privately owned corporation.

c. In 1976 the Supreme Court overturned Maryland v. Wirtz in National League finding that the FLSA could not be constitutionally applied if the state activity is an “integral operation in areas of traditional governmental functions,” National League, 426 U.S. at 852, 96 S.Ct. at 2474. Local mass transit systems were not specified in National League as immune from FLSA coverage.

Then, on remand, the district court in National League made clear that the Supreme Court’s holding did not provide public bodies with general immunity from FLSA. The district court noted and incorporated in its decision a Department of Labor special enforcement policy concerning states and political subdivisions which, inter alia, established a procedure by which such constitutionally immune activities would be determined, National League, 429 F.Supp. 703. The Department of Labor’s enforcement policy identified certain areas as traditional governmental functions, such as schools, hospitals, fire, and police protection, and also identified other functions as not traditional governmental, naming specifically “the operation of a railroad by a state” as noted by the Supreme Court in National League, 429 F.Supp. at 706 (citing 426 U.S. at 854 n. 18, 96 S.Ct. at 2475 n. 18).

On December 21, 1979, the Department of Labor formally amended its FLSA interpretive regulations to provide that publicly owned mass transit systems are not entitled to imunity under National League, 44 Fed.Reg. 75, 630 (1979)(codified at 29 C.F.R. § 775.3(b)(3)(1983)) and since that time no regulations have issued restricting FLSA’s application to mass transit.

. d. Throughout the period following December 21, 1979, other courts of appeals, besides the Eleventh Circuit in this case, found and confirmed FLSA coverage of publicly operated mass transit. And during this period the Supreme Court decided United Transportation Union v. Long Island R.R. Co., 455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982), in which the Court ruled that commuter rail service provided by the state-owned Long Island Rail Road did not constitute a traditional governmental function and hence did not enjoy constitutional immunity under National League.

e. On April 27, 1981, this court found defendant and its transit system to be covered by the FLSA.

8. From the foregoing it must be found that defendant, aware of the Department of Labor’s regulations and other courts’ decisions, pursued its honest differences with those regulations and decisions until this court’s adverse ruling on April 27, 1981. From and after that date defendant knew its transit system was covered by FLSA.

CONCLUSIONS OF LAW

9. Defendant has asked the court to reexamine and change the summary judgment order on the issue of liability that has already been affirmed on appeal, citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 Chevron") for the proposition that the Supreme Court’s decision in Garcia should be applied prospectively only. What defendant ignores is that this court ruled on liability on April 27, 1981, pursuant to the FLSA, and such ruling was affirmed and the Supreme Court denied defendant’s petition for a writ of certiorari approximately two weeks after Garcia was decided.

Moreover the Chevron factors regarding nonretroactivity are a compendium of federal common law principles for use in the absence of federal statutory provisions. Federal common law is inapplicable where Congress has determined by statute — as here the FLSA and the Portal to Portal Act, 29 U.S.C.A. §§ 251-262 (West 1985)— the underlying policy and its enforcement. Milwaukee v. Illinois and Michigan, 451 U.S. 304, 312-14, 101 S.Ct. 1784, 1790-91, 68 L.Ed.2d 114, 123-25 (1981). See also Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67, 63 S.Ct. 573, 575, 87 L.Ed. 838, 841-42 (1943)(Federal common law can be applied, if at all, only “[i]n [the] absence of an applicable Act of Con-gress_”); Tennessee Valley Authority v. Hill, 437 U.S. 153, 195, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117, 147 (1978).

The Chevron factors, even if applicable, do not compel nonretroactivity. First, with regard to the establishment of a new principle of law or deciding an issue of first impression whose resolution was not clearly foreshadowed, “[T]he ‘clear break’ principle has usually been stated as the threshold test for determining whether or not a decision should be applied nonretroactively”, United States v. Johnson, 457 U.S. 537, 550 n. 12, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202, 214 (1982). Here there was no “clear break”; Garcia is an expansion of the law, not a change in the law. As the pertinent history of the application of the FLSA to public transit employees reveals, even after the Supreme Court’s decision in National League, the federal appellate courts — including the Eleventh Circuit Court of Appeals in this case — and the U.S. Department of Labor regulations on December 21, 1979, consistently applied FLSA to publicly owned mass transit systems. See Garcia, 105 S.Ct. at 1007-09.

The history of the FLSA, its purposes, and its enforcement scheme, demonstrate a strong congressional purpose to protect individual employees’ non-waivable statutory right to overtime pay, to provide broad access to the courts, and to require compensatory damage awards. Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 739-41, 101 S.Ct. 1437, 1444-45, 67 L.Ed.2d 641 (1981). This analysis answers the second factor of Chevron and compels retrospective application of Garcia. Nor is there any inequity — Chevron’s third factor — by the retroactive application of a statute defendant purposefully chose to ignore even after this court and the court of appeals determined otherwise. Accordingly, defendant is liable for the time periods as set forth in the applicable provisions of the FLSA as amended.

10. FLSA, as amended by the Portal to Portal Act, provides that a cause of action for the recovery of unpaid overtime compensation may be brought within two years after the cause of action accrued except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. See, 29 U.S.C.A. §§ 216(b), 255 (West 1985). This action was brought on December 20,1979, at which time the Court-in National League specifically had found that governmental operations of schools, hospitals, police, and fire were constitutionally exempt from FLSA coverage. Mass transit, although claimed in National League to be exempt, was not so found by the Supreme Court and instead the Court noted and distinguished its earlier holding in United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936) to the effect that “common carriage by rail in interstate commerce” was not an integral part of governmental activities, National League, 426 U.S. at 854 n. 18, 96 S.Ct. at 2475 n. 18, 49 L.Ed.2d at 259 n. 18, see also National League, 429 F.Supp. at 706 (1977)(on remand). In National League, upon remand, the district court made clear that each public activity would be scrutinized to determine whether it was covered or immune from FLSA. See National League, 429 F.Supp. at 703.

On December 21, 1979, the Department of Labor issued its interpretive regulation that publicly owned mass transit systems were subject to FLSA, and this court ruled that defendant’s transit system was covered by FLSA on April 27, 1981. Given this history, defendant’s failure and refusal to pay overtime compensation as required by FLSA has unquestionably been willful since on and after April 27,1981. In Brock v. Georgia Southwestern College, 765 F.2d 1026, 1039 (11th Cir.1985) the court said:

... a violation is willful [under 29 U.S.C. § 255] if the employer knows or has reason to know that his or her conduct is governed by the Act. Brennan v. Heard, 491 F.2d 1 (5th Cir.1974). An employer need not proceed with knowledge that his or her actions are contrary to the Act in order for willfulness to be found. Id. An action is “willful” if the employer knew that the Act was “in the picture” regardless of the defendant’s good faith. Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir.1971), cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219 (1972). See also Marshall v. A & M Consolidated Independent School District, 605 F.2d 186, 190-91 (5th Cir.1979)(actual awareness of the law is unnecessary to- establish willfulness; knowledge is imputed.)

See also Castillo v. Givens, 704 F.2d 181, 193 (5th Cir.1983), cert. denied, 464 U.S. 850, 104 S.Ct. 160, 78 L.Ed.2d 147; Donovan v. Simmons Petroleum Corp., 725 F.2d 83, 85 (10th Cir.1983). Accordingly, all claims filed herein will be deemed to embrace violations arising within three years preceding the filing of the consent to sue except for those violations occurring before April 27, 1981, in which case plaintiffs’ claims will be deemed to embrace violations arising only within the preceding two years.

11. The FLSA, as amended by the Portal to Portal Act, also compels the payment of “... an additional equal amount [of unpaid overtime compensation] as liquidated damages,” 29 U.S.C.A. § 216(b)(West Supp.1985), unless “the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [Act],” 29 U.S.C.A. § 260 (West 1985). In Reeves v. International Telephone and Telegraph Corp., 616 F.2d 1342, 1353 (5th Cir.1980) the court said: >

As decisions have shown, the presumption of willfulness stands, absent positive and compelling proof of good faith. It is not enough, for instance, to plead and prove ignorance of the wage requirements. Knowledge will generally be imputed to the offending employer. Marshall v. A & M Consolidated Independent School District, 605 F.2d 186 (5th Cir.1979). Nor does the complete ignorance of the possible applicability of the Act shield the employer from liability for liquidated damages. Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir.1972). Good faith requires some duty to investigate potential liability under the Act. Barcellona v. Tiffany English Pub, Inc. [597 F.2d 464 (5th Cir.1979) ].
Lack of good faith is demonstrated when an employer “knows, or has reason to know, that his conduct is governed by the [Act].” Brennan v. Heard, 491 F.2d 1, 3 (5th Cir.1974).

As noted above, the defendant had to have known after April 27, 1981, that its refusal to pay overtime would result in not only the recovery of unpaid overtime but also liquidated damages. Accordingly, liquidated damages must be awarded for each violation on and after April 27, 1981.

For those violations preceding April 27, 1981, however, prejudgment interest is wholly appropriate in consideration of the losses in wages sustained by these wage earner employees for years and the loss in value of delayed payment by reason of inflation. Moreover a failure to award such interest would create an incentive to employers to violate the Act. Donovan v. Sovereign Security, Ltd., 726 F.2d 55, 58 (2nd Cir.1984).

12. FLSA further provides, “[t]he court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action,” 29 U.S.C.A. § 216(b)(West Supp. 1985). Accordingly, plaintiffs within 180 days may file a petition for attorney’s fees and costs, failing which attorney’s fees and costs will be deemed abandoned.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED;

a. That defendant pay to each plaintiff for unpaid overtime, liquidated damages, and prejudgment interest an amount calculated in accordance with this order within 30 days.

b. That the parties complete discovery within 90 days and then within 30 days present to the court their respective positions and supporting memoranda in regard to plaintiffs Griffin, Bone, W. Jackson, and Kitchens.

      . The original complaint, filed on December 20, 1979, was accompanied by 34 consents to sue. Thereafter, at various times, 15 additional consents to sue have been filed.

      . Plaintiff C. W. McCoy was terminated on April 9, 1977. The backpay period in this case begins on December 20, 1977 (see ¶ 12, infra).

      . Dove v. Chattanooga Area Regional Transportation Authority, 701 F.2d 50 (6th Cir.1983); Kramer v. New Castle Area Transit Authority, 677 F.2d 308 (3rd Cir.1982), cert. denied, 459 U.S. 1146, 103 S.Ct. 786, 74 L.Ed.2d 993 (1983); Francis v. City of Tallahassee, 424 So.2d 61 (Fla.App.1982).

      . Also during this period the district court in which Garcia originally arose had found the public transit system there to be a governmental function and immune from FLSA coverage. That judgment was vacated and remanded by the Supreme Court for further consideration in light of Long Island RR, 457 U.S. 1102, 102 S.Ct. 2877, 73 L.Ed.2d 1309; the district court’s judgment remained unchanged on remand, 557 F.Supp. 445 (W.D.Tex.1983), but, was ultimately reversed in Garcia.

      ."[S]ince the Supreme Court is well aware of how to avoid the effects of applying one of its rulings retroactively.... the declination to do so ... suggests that the Supreme Court intended its decision to be applied retroactively_” Lamore v. Inland Div. of GM, 550 F.Supp. 1005, 1014 (S.D.Ohio, 1982), aff'd, 714 F.2d 140 (6th Cir.1983)(citations omitted).

      . In Chevron the Court set forth three factors:
      First, the decision to be applied non retroactively must establish a new principle of law, either by .overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed.... Second, ... we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its opera-tion_ Finally, we have weighed the inequity imposed by retroactive application....

        Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted).

      . Additionally, section 10 of the Portal to Portal Act, 29 U.S.C. § 259, would excuse all liability for unpaid overtime if the employer pleads and proves its conduct “was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval or interpretation of [the Administrator of the Wage and Hour Division of the Department of Labor] or any administrative practice, or enforcement policy of such agency_” While defendant has pled this defense it has not and cannot prove "good faith reliance” because, as noted above, at no time did the Department of Labor excuse the payment of overtime in the publicly owned mass transit industry. In fact, its regulations dated December 21, 1979, specifically listed publicly owned mass transit as one of the functions unaffected by National League, a decision which not only failed to specify mass transit as an industry within its holding but indeed suggested strongly that it was not. See National League, 426 U.S. at 854 n. 18, 96 S.Ct. at 2475 n. 18.

      . Prejudgment interest in lieu of liquidated damages for pre-December 21, 1979, violations had been calculated at 7% simple interest in accordance with Georgia statutes, O.C.G.A. § 7-4-2.


author: DORSEY, District Judge.

text:
    Lacurtis MOORE, et al. v. SECRETARY OF the ARMY.
    Civ. No. H-85-40 (PCD).
    United States District Court, D. Connecticut.
    Feb. 14, 1986.

      LaCurtis Moore, pro se.
    W. Philip Jones, Asst. U.S. Atty.', Hárt-, ford, Conn.j for defendant.
   RULING ON DEFENDANT’S MOTION TO DISMISS

DORSEY, District Judge.

Plaintiffs are the widow (Lacurtis Moore) and daughter (Tonya Moore) of Menrie W. Moore (Moore), a member of the United States Army who died while stationed in Germany. Originally, plaintiffs sought:

(a) A declaratory judgment that the acts, policies and practices of defendant, Secretary of the Army, violated plaintiffs’ right to benefits. Separately, plaintiffs asserted benefits claimed by reason of their relationships to a veteran. See Original Complaint, ¶1¶ 24, 30-33.

(b) A correction of the service record of Moore.

(c) Five Million Dollars compensation from the Department of the Army for the denial of benefits.

Defendant moved to dismiss for want of jurisdiction, Rule 12(b)(1), Fed.R.Civ.P., and for failure to state a claim on which relief might be granted. Rule 12(b)(6). Plaintiffs moved to amend their claims. Now plaintiffs seek:

(a) A declaratory judgment that defendant’s acts, policies and practices violate unspecified federal rights of plaintiffs.

(b) Correction of the service record of Moore, without precise identification of the record to be corrected.

(c) From the Department of the Army, $5,000,000 compensation for the errors in Moore’s military records; the widow’s mental upset from having read the records as claimed to be erroneous; the loss of the widow’s opportunity to be with her husband at his death; for the necessity of the widow’s trip to Germany in relation to Moore’s death and from learning of his death; funeral expenses; loss of companionship and marital rights; unspecified physical consequences of the death; loss of financial assistance from survivor’s benefits; the widow’s inability to travel and visit relatives by reason of her loss of benefits; the need and effort to correct the record; and to plaintiff daughter from the loss of companionship and a chance to share her life with her father.

Defendant has supplied the Army investigative record relative to the death of Moore; the Army regulations pertinent to that investigation; an extract from the Manual for Court Martials, United States, 1951; the record of the court martial of Marion L. Cook; the record of the Army Board for Correction of Military Records (ABCMR) relative to plaintiffs’ requests; and the Army regulation (AR-15-185, 5/17/77) which pertains to the procedures of ABCMR. To the extent that any of these materials are considered, defendant’s motion must be considered and decided as a motion for summary judgment, where the test is the existence of a genuine issue of material fact. As a motion to dismiss, the question is whether there are any allegations which, if proved, would entitle plaintiffs to relief. Treatment, below, of the several aspects of defendant’s motion will reflect the tests applied.

Facts

Moore was an enlisted man in the Army in 1968, then stationed in Germany. On July 4, 1968, there was an altercation between at least two white soldiers, twin brothers Marion and Marlon Cook, and a group of at least five black soldiers. The confrontation initiated in a local bar, although the dispute initially arose between one of the Cook brothers and one Wither-spoon, one of the black soldiers, a week earlier. The Army investigation identified Witherspoon and Moore as members of the group of black soldiers involved in the altercation which resulted in their deaths and that of a third member of the group. One of the Cook brothers appears to have wielded a knife in the altercation which resulted in the three deaths and was charged criminally. He claimed justification for that use, as a matter of self-defense, at his court martial.

An investigation was performed by Army personnel prior to the court martial. The record of that investigation, including the witness interviews and report of the investigation officer, is part of the record, Exhibit D, and is the focus of plaintiffs’ complaint. The investigating officer (10) determined from less than totally clear and consistent statements that Moore went originally to the bar and to the scene of the altercation with the group of black soldiers. He was then on a pass. It was also found that he remained at the scene when the altercation was obviously imminent and while it was taking place. His acts were .not precisely described, but he died as a result of the altercation. Marion Cook was seemingly sufficiently culpable as appropriately to be charged criminally, but with less than premeditated homicide. However, he was acquitted at his court martial.

Relief Sought

Despite plaintiffs’ disclaimer, their original purpose in initiating the review by the ABCMR and in bringing this lawsuit was to qualify themselves for benefits to which survivors of veterans might be entitled. That purpose is reflected in the request to the ABCMR and in the original complaint filed in court. Indeed, some vestiges of that goal remain in the present amended complaint. Such is contrary to the bar to a court’s review of a VA denial of benefits. 38 U.S.C. § 211(a). See Pap panikoloaou v. VA, 762 F.2d 8 (2d Cir.1985). Nonetheless, plaintiffs may not be precluded from seeking intermediate relief, if lawful, even though then they may well hope that a corrected Army record might warrant reconsideration by the VA of Moore’s status and, in turn, their entitlement to benefits.

What is not clear is the record that plaintiffs wish changed. Nowhere do they specify the specific document they want changed. Perhaps it is the DA Form 2173, Statement of Medical Examination and Duty Status, which they want changed, which appears to be the face sheet of the IO’s report of his investigation into Moore’s death. Neither the relief specified in the amended complaint, nor plaintiffs’ memorandum in opposition to the motion to dismiss, identifies such a document. What their memorandum suggests is a more generic correction, a change in the findings of the 10. While the Army’s investigation is not formally related to the VA determination, it was provided to the VA along with the record of the court martial of Marion Cook. The question presented here is whether plaintiffs, now having restricted their request to the very limited record correction, have the right to present that claim here.

Motion to Dismiss

A.

Taken first as a motion to dismiss for want of jurisdiction, defendant’s claims will be assessed separately:

1. The suit cannot lie on the basis of the jurisdiction cited by plaintiffs, 10 U.S.C. § 1552(a). That statute does not vest jurisdiction in the court. Specifically, it does not authorize this court to entertain a review of a ruling of the ABCMR. The Army regulations cited by plaintiffs, AR600-10 and ¶[ 5-10k, cannot and do not create jurisdiction in the court. Only congressional acts can create jurisdiction. Plaintiffs are acting pro se, however, and their complaint is to be construed liberally in deference to their lack of familiarity and skill in legal technicalities. Haines v. Kerner, 404 U.S. 519, reh’g denied, 405 U.S. 948 (1972). While plaintiffs have not identified an appropriate statute on which jurisdiction would lie, plaintiffs may not be precluded from pursuing this action when jurisdiction plainly lies. Plaintiffs do have the right to petition the ABCMR for corrections of military records, and its determinations are reviewable in court for the existence of any evidence of an arbitrary or capricious decision which is not founded on substantial evidence. Chapel v. Wallace, 462 U.S. 296, 303 (1983). An act of Congress created the right to petition the ABCMR for correction. Plaintiffs’ claim is a civil action founded on that act and thus jurisdiction would plainly lie. Haines v. United States, 453 F.2d 253 (3d Cir.1971). The motion to dismiss for want of jurisdiction is denied.

2. The motion to dismiss would have to be granted to the extent that plaintiffs seek a review of a denial of benefits by the VA. There is no such jurisdiction. 38 U.S.C. § 211(a). Plaintiffs will be held to their disclaimer of any assertion of a right to review of the VA’s denial of benefits. The motion to dismiss, so far as their claim might seek such a review, is denied on the basis that no such review is claimed here.

B.

Taken as a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P.:

1. Plaintiffs cannot claim money damages:

(a) The claim of damages asserted is from the Department of the Army, which is not a party here.

(b) Plaintiffs’ claim is in reality a claim against the United States, which has not been shown to have waived its sovereignty as to such a claim, thus presenting the court with a fundamental jurisdictional defect. 15 Wright, Miller & Cooper, Federal Practice and Process, § 3654 at 156-59 (1976). Unless it has consented to a particular type of action, the United States may not be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941); see Affiliated Ute Citizens v. United States, 406 U.S. 128, 141 (1976).

(c) Plaintiffs’ claim of the violation of unspecified federal rights is conclusory. Any claim of the violation of constitutional rights must be specific and the present claims are insufficient. Giving plaintiffs every benefit of the doubt, there is no allegation that would permit a recovery for violation of any specific constitutional right.

(d) The specified grounds of damage to plaintiffs, while setting forth consequences to them arising from Moore’s death, at best would be a derivative claim. Yet, there is no showing by any stretch of the pleadings of any responsibility on the part of defendant for Moore’s death. Plaintiffs have tried to link their damage claims to an incorrect military record. If plaintiffs are correct that the record is incorrect, the only relief to which they would be entitled before the ABCMR, and can thus be reviewed by this court, is a correction of that record, 10 U.S.C. § 1552, and not an award of damages for the mostly intangible injuries plaintiffs allege.

2. To the extent of plaintiffs’ claims on the foregoing bases, the motion to dismiss is granted.

C.

Defendant’s motion, as grounded on the absence of legal authority to order correction of Moore’s record, must be considered against the entire record and thus decided under Rule 56, Fed.R.Civ.P. What plaintiffs seek is a finding of a failure of the ABCMR to accord them the right of reconsideration of what has been recorded in Moore’s service record. The statute, 10 U.S.C. § 1552, does not give plaintiffs the right to dictate the contents of that record. That decision has been left for determination, at the first instance, to the Army. Assuming, arguendo, without so holding, that the investigation report is part of Moore’s service record, at best plaintiffs are entitled to fair consideration by the ABCMR of whether that record is incorrect. If the ABCMR did not fairly consider plaintiffs’ claims that the record is incorrect, then the right created by 10 U.S.C. § 1552 has not been provided. Yet, this does not mean that plaintiffs are entitled to a de novo determination as to corrections of the record, nor are they entitled to correcting action by ABCMR merely because they say that the record is incorrect. Plaintiffs’ right is to a review of the ABCMR’s action, the test being whether the Board’s action was arbitrary or capricious. Such would have been the case if the Board decided that the record was not incorrect in the face of a lack of substantial evidence to substantiate any material fact recited in that record. Chapel, 462 U.S. at 303. The report of the IO set forth all of the interview statements obtained'. Those cannot be changed. There is nothing to alter the fact that certain witnesses said certain things. Whether those things were or were not true, the record does not show that the statements do not reflect what the witnesses said. It is true, as plaintiffs claim, that the investigative report does not present an uncontroverted description of what occurred at and before Moore’s death. It is also true that every fact that the 10 found is not supported by unequivocal assertions of one or more of the witnesses. Obviously the 10 drew inferences from the evidence presented to him. Such is not improper. The 10 expressed some of his views in terms of “feeling,” but that manner of expression is not determinative. The controlling factor is whether the IO’s findings were reasonably supported by some evidence within the record before him. The ABCMR found, after all plaintiffs’ requests were considered, that there was no basis to correct Moore’s record. Plaintiffs have presented no evidence to the contrary. The correctness of the Board’s decision that the IO’s report need not be corrected must be based upon the existence of substantial evidence in the record presented to the 10 which supports the challenged findings and conclusions in that report. Unfortunately, plaintiffs have chosen to meet defendant’s motion by simply revoicing their challenges to defendant’s “facts.” What is relevant is plaintiffs’ contention that the 10 could not have made the findings and conclusions in his report because there was no evidence in the record before him to substantiate such. Specifically, plaintiffs assert the want of proof of the following:

(a) that Moore was killed in a fight in which he intentionally involved himself;

(b) that Moore’s involvement was not disputed;

(c) that Moore willingly engaged in, if not actively sought, a fight in which deadly force was likely to be employed;

(d) that Moore could have avoided the fight;

(e) that Moore was killed by Marion Cook;

(f) that there was evidence of Moore being under the influence of alcohol; and

(g) that at Marion Cook’s trial there was overwhelming evidence of Moore’s willing participation in the fight.

Plaintiffs’ argue that:

(a) the record reflects certain persons as involved in the fight as identified by color and not by name;

(b) Moore’s involvement was inferred from his color; and

(c) there was evidence accepted of Moore having ingested alcohol although no blood alcohol test was reported.

Plaintiffs argue that the absence of a Mr. Herrick, reported on leave at the time of the court martial, precluded the 10 from making findings that Herrick made. Such a speculative assertion cannot be the basis for correcting what the 10 reported. It is irrelevant to what “line of duty” determination would have been made by the Army. None was made. What the Army might have done would be speculative. To argue other possibilities is to dispute the IO’s inferences which, if reasonably founded, cannot be changed. The question is not whether other inferences were possible or would have been drawn by another individual or tribunal, but whether the IO’s inferences were reasonably based on evidence presented to him. Likewise, plaintiffs’ citation of inconsistent and contradictory statements by persons who were at the time of the incident geographically proximate thereto does not require any change in the judgments made by the 10 nor by his superiors in their review of his report. Faced with inconsistencies and contradictions, it is within the peculiar province of the investigating officer initially to determine the facts. If his findings are supported by substantial evidence, they will stand and need not be corrected, in accordance with the uniform code of military justice. That other witnesses might have been interviewed is likewise irrelevant, particularly when no offer is made as to what other witnesses would have said. Yet the existence of problems in determining what happened does not bar the 10 from doing his best to do so. What .controls is whether his decisions as to what evidence he will credit resulted in findings that are based on substantial evidence. It is not determinative that Moore is not mentioned by name, as long as it was reasonable from the evidence to infer Moore’s involvement. The IO’s recommendation of a court martial and the particular charges therein and his reasons therefor are irrelevant to the question before this court as well as speculative. So also is the conduct of the trial. The trial came after the investigation. It cannot bear on the correctness of the report of the 10.

The record presented to the 10 has been reviewed by the court. It clearly includes evidence that:

1. Prior to the- altercation, five black soldiers were in the 369 bar.

2. The Cook brothers had been in the 369 bar.

3. One of the blacks, a short man, apparently identified as Elijah Witherspoon, probably had had an ongoing dispute with one of the Cook brothers from a point in time prior to the evening in question. There was evidence that he had threatened one of the brothers. He was prepared to engage one of the Cook brothers, at least, in a fight. Witherspoon was described as 5' 6" tall and weighing 110-120 lbs.

4. The other four black soldiers were recruited either at the 369 bar or at the enlisted men’s club by Witherspoon and had come to the bar aware of Witherspoon seeking out the soldiers with whom he had had an argument which he intended to pursue. That group went to the bar with Witherspoon in pursuit of his intention to engage in an altercation. The Cook brothers left the bar along with a group of other soldiers with whom they had been sitting in the bar. The black soldiers left the bar immediately after the Cooks and their group had left and thus could well have been found to have been prepared to support, if not to join, Witherspoon in the fight which he was plainly seeking and which eventually ensued.

5. The Cook brothers and their group headed back toward their barracks.

6. The five black soldiers surrounded the Cook brothers. Witherspoon and one of the black soldiers could have been found to have struck the first blows, one with a beer bottle, the other with a belt which was equipped with a metal buckle.

7. Sequentially, the Cook brothers, or at least one of them, engaged in a fight with two of the black soldiers relatively close to the 369 bar. The two black soldiers were mortally wounded in the course thereof. One of those black soldiers, identified from the fact that his body was found at the scene, was Moore.

8. One of the Cook brothers had a knife which was used in the fight. Both of the Cooks suffered injuries in the fight.

9. After the injuries had been sustained by two of the blacks who were found at the initial scene of the fight, later identified as Witherspoon and Moore, the fight was continued at a point removed from the locus of the initial fighting after the Cooks had attempted to leave the fight scene and get back to their barracks. They were followed to the continued point of the fight by three of the black soldiers, one of whom was also injured in the continuation of the fight. The three black soldiers were identified as being involved in the fighting with one or more of the Cook brothers on the basis that they were injured, died and their bodies were all found at the scenes. Each of the three who died had been in the group which was originally in the 369 bar, having come there with Witherspoon and followed the Cook brothers out of the bar to the street where the altercation occurred. Witherspoon had earlier made threats directed against one of the Cook brothers. Witherspoon had come back to the 369 bar with members of the group of black soldiers for the purpose of engaging in a fight. Thus, each of the three members of the group who were killed, including Moore, was part of the group which pursued the Cooks out of the bar and to the points at which the altercation occurred with a clear knowledge and understanding that an intended altercation would ensue, The injuries and deaths occurred in the course of or as a result of the altercations which ensued.

10. Plaintiffs decedent was one of the three killed and, although he was not specifically identified in the course of the events which led up to and constituted the altercation, he was properly identified as having been among the group of black soldiers who had come to the 369 bar and then followed the Cook brothers out of the bar with Witherspoon. Further, plaintiffs decedent was one of the three members of the group of black soldiers who had individually and as part of the group engaged in the altercation with one or both of the Cook brothers in the course of which Moore sustained the injuries from which he died.

In considering the foregoing, statements contained in the investigative officer’s report from the witnesses Racik, Marion Cook, Arnold Raymond, David Van De Wiele, William Barten Baker, Marvin Carte, Garth Fike, Perry Young and Julius Boze were reviewed.

The record thus contains substantial evidence from which the 10 could reasonably have made the findings challenged by plaintiffs. Accordingly, plaintiffs are not entitled to the relief that they have prayed. The refusal of the ABCMR to correct the record of Menrie W. Moore as claimed by plaintiffs is not unwarranted. The action of the ABCMR was not contrary to law as that Board could reasonably have found that the findings of the 10 were reasonably substantiated by evidence in the record before him. Thus, the court may not order the ABCMR to reconsider its determination nor to correct the record. Plaintiffs were entitled to a reasonable review of the record by the ABCMR and it has done so. Plaintiffs are entitled to no more.

For the foregoing reasons, the motion to dismiss the complaint, considered in part as a motion for summary judgment, is granted.

To the extent that the motion to dismiss has been considered as a motion for summary judgment and granted, judgment shall enter for defendant,

gQ ORDERED

      . Said motion appears not to be opposed, understandably, as it eliminates some claims which defendant asserts plaintiffs cannot make. The motion is granted.

      . Plaintiffs also assert a waiver of immunity, but plaintiffs mere say so is not sufficient to constitute a waiver of governmental immunity, which only Congress can grant.