author: NORMA HOLLOWAY JOHNSON, District Judge.

text:
    NATIONAL TREASURY EMPLOYEES UNION, Plaintiff, v. UNITED STATES CUSTOMS SERVICE, et al., Defendants.
    Civ. A. No. 82-2867.
    United States District Court, District of Columbia.
    Aug. 30, 1984.

      Lois G. Williams, Sharyn Danch, Michael J. McAuley, National Treasury Employees Union, Washington, D.C., for plaintiff.
    Charles F. Flynn, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

Plaintiff National Treasury Employees Union (NTEU) brings this action under the Freedom of Information Act (FOIA), as amended, 5 U.S.C. § 552 et seq. (1982), to enjoin the United States Customs Service from withholding certain documents that defendants claim are exempt from disclosure under FOIA. The documents in question are known as “crediting plans” — an internal evaluation procedure developed in each of the nine regional offices of the Customs Service pursuant to Article 17, Section 7, of the negotiated National Agreement between NTEU and Customs and “designed to insure a systematic means of selection for promotion according to merit.” 5 C.F.R. § 335.102 (1982). Presently, the Court is considering the renewed motion of plaintiff to compel preparation of a Vaughn Index and the cross motions of the parties for summary judgment. For the reasons set forth below, the Court will deny the renewed Vaughn motion of plaintiff and grant the motion of defendant for summary judgment as there are no material issues of fact in dispute and defendants are entitled to judgment as a matter of law.

BACKGROUND

Plaintiff filed its FOIA requests by letters dated April 20,1982, with the Regional Commissioners of all nine regions of the Customs Service. In each request, plaintiff sought the crediting plans used by the regional office for the following seven positions: 1) Senior Inspector, GS-1899-11; 2) Import Specialist Team Leader, GS-1889-12; 3) Customs Patrol Officer, GS-1884-9; 4) Entry Level Customs Inspector, GS-1899-5; 5) Entry Level Import Specialist, GS-1889-5; 6) Entry Level Customs Patrol Officer, GS-1884-5; and 7) Customs Warehouse Officer, GS-1845-4/5/6. When plaintiff did not receive either a response or partial or complete denial of its FOIA requests from the regions, it timely filed an administrative appeal with the Office of Regulations and Rulings of the Customs Service by letter dated June 8, 1982. On November 10, 1982, Customs issued its final decision releasing in part the forty-four crediting plans responsive to plaintiffs FOIA requests. Customs determined that the information withheld or subject to excision was properly exempt from release under FOIA exemptions (b)(2) and (b)(5).

Thereafter, plaintiff filed this suit contesting the agency’s claimed exemptions and petitioning the Court for an order compelling defendants to prepare a Vaughn Index. On October 27, 1982, the Court denied plaintiff’s Vaughn motion without prejudice. Plaintiff filed a second motion to compel the preparation of a Vaughn Index on December 3,1982, after which the parties agreed that the crediting plans from Customs’ Houston Region would be representative of all crediting plans in dispute for the limited purposes of resolving plaintiff’s second Vaughn motion. Defendants submitted the affidavits of William R. Irvin, Assistant Director, Staffing, Office of Personnel Management (OPM) and B. James Fritz, Director, Disclosure Law Division, Office of Regulations and Rulings, United States Customs Service, in response to plaintiffs second Vaughn motion. Plaintiff, however, filed a renewed Vaughn motion on January 11, 1983, on the grounds that the Irvin and Fritz affidavits were insufficient. After opposing plaintiffs renewed motion, defendants filed a motion for summary judgment contending that no material issue of fact remains in dispute and that the requested information in the crediting plans is exempt from release under FOIA exemption (b)(2). Plaintiff, in turn, filed its cross motion for summary judgment.

DISCUSSION

I. Plaintiffs Renewed Vaughn Motion

Plaintiff, in its renewed motion for preparation of a Vaughn Index, argues that the affidavits of Irvin and Fritz are insufficient in three respects. First, plaintiff contends that the affidavits contain inadequate detailed justification of defendants’ claimed exemption. Second, plaintiff maintains that neither affiant attempts to correlate the claimed exemption with specific portions of the requested crediting plans. Third, plaintiff asserts that “the factual nature of the withheld materials remains shrouded in mystery.” In sum, plaintiff contends that the Irvin and Fritz affidavits are insufficiently detailed to satisfy the standards of Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

It is firmly established in this Circuit that agency affidavits in support of a FOIA exemption must “describe the documents and justifications for non-disclosure with reasonably specific detail....” to comply with the requirements set forth in Vaughn v. Rosen. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). See also Hayden v. National Security Agency/Central Security Service, 608 F.2d 1381, 1387 (D.C.Cir.1979), cert. denied, 466 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980); Mead Data Central, Inc. v. U.S. Department of Air Force, 566 F.2d 242, 251 (D.C.Cir.1977). The reason for this rule of “reasonable specificity” is to ensure that an agency’s allegations of exempt status are both adequately justified and sufficiently detailed so that a plaintiff can “argue effectively against the [agency’s] exemption claims.” See e.g., Mead, 566 F.2d at 251.

The affidavits of Irvin and Fritz contain a detailed justification of the reasons why defendants believe Exemption (b)(2) proscribes disclosure of the crediting plans. Irvin’s affidavit describes the withheld information as “non-verifiable portions of a crediting plan” which are designed to assess an applicant’s skills rather than his verifiable educational or occupational attainments. According to Irvin, this non-verifiable information consists of, inter alia, tailored questions and their corresponding ratings. Moreover, Irvin’s affidavit sets forth in sufficient detail the type of harm that defendants contend would result from the disclosure of the information, such as the creation of an unfair advantage to those applicants with advance knowledge of the questions and ratings as well as the impairment of the agency’s ability to accurately evaluate such an applicant’s real skills. Irvin analogizes public disclosure of the non-verifiable portions of a crediting plan to “revealing examination questions prior to a written test.” Fritz’s affidavit, likewise, details with reasonable specificity why the Customs Service determined that the withheld information is within the purview of Exemption (b)(2). He describes the two types of information withheld as “qualifying language used in each criteria to evaluate the experience claimed by each candidate according to the manner of performance” and “examples of experience under each criteria which the agency has determined qualifies for the various grade levels used in evaluating the candidates’ responses to the KSAO’s [knowledge, skills, abilities, and other candidate characteristics] listed in the job vacancy announcements.” Fritz also states that pub-lie disclosure of these documents would undermine the validity and fairness of the Service’s evaluation ■ process inasmuch as those candidates who obtained the information could “parrot” the qualifying language contained in the higher grade levels of the crediting plans.

The Court is also unpersuaded by plaintiff’s claim that defendants’ affidavits fail to correlate the claimed exemptions with specific portions of the unreleased documents as required by Vaughn. In Vaughn, the Civil Service Commission claimed that certain documents were exempt in their entirety under three distinct exemptions. The Court, after stating that the Vaughn case “dramatically illustrated” the need for an itemization and indexing system, explained the rationale for this requirement:

From the record, we do not and cannot know whether a particular portion is, for example, allegedly exempt because it constitutes an unwarranted invasion of a person’s privacy or because it is related solely to the internal rules and practices of an agency. While it is not impossible, it seems highly unlikely that a particular element of the information sought would be exempt under both exemptions. Even if isolated portions of the document are exempt under more than one exemption, it is preposterous to contend that all of the information is equally exempt under all of the alleged exemptions. It seems probable that some portions may fit under one exemption, while other segments fall under another, while still other segments are not exempt at all and should be disclosed. The itemization and indexing that we herein require should reflect this.

484 F.2d at 827-28. This case does not present the type of anomaly which existed in Vaughn. All of the documents withheld by defendants are allegedly exempt from disclosure under one FOIA exemption, Exemption (b)(2), thereby nullifying the need to formulate the type of itemization and correlation system required by the Court of Appeals in Vaughn. For these reasons, the Court finds the affidavits of Irvin and Fritz sufficient to satisfy the standards of Vaughn.

II. Documents Were Properly Withheld Under Exemption (b)(2), 5 U.S.C. § 552(b)(2)

Exemption (b)(2) covers materials “related solely to the internal personnel rules and practices of [an] agency.” 5 U.S.C. § 552(b)(2). To determine whether documents fall within Exemption (b)(2), the Court must determine whether the withheld information relates to “routine matters” of “merely internal significance” in which there is no substantial or legitimate public interest. See Lesar v. U.S. Department of Justice, 636 F.2d 472, 485 (D.C.Cir.1980). The D.C. Circuit Court, in Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc), devised a two-prong test to evaluate the applicability of this exemption. The Court noted:

[I]f a document for which disclosure is sought meets the test of ‘predominant internality,’ and if disclosure significantly risks circumvention of agency regulations or statutes, then Exemption 2 exempts the material from mandatory disclosure.

670 F.2d at 1074.

Defendants argue that the affidavits of Irvin and Fritz adequately demonstrate that the withheld crediting plans are internal documents whose disclosure will risk circumvention of subchapter S6-1 of the Federal Personnel Manual (FPM) Supplement 335-1 (August 20, 1982). Plaintiff maintains, however, that both affidavits are insufficient to satisfy the agency’s burden of proof under FOIA Exemption (b)(2). Although the Court has determined that these affidavits are sufficient to withstand plaintiff’s renewed Vaughn motion, it must nonetheless consider their adequacy for summary judgment purposes. Summary judgment for the Government is warranted if “the description in the affidavits demonstrates that the information logically falls within the claimed exemption and if the information is neither controverted by the evidence in record nor by evidence of agency bad faith.” Baez v. United States Department of Justice, 647 F.2d 1328, 1335 (D.C.Cir.1980). It is the finding of the Court that the affidavits of Irvin and Fritz adequately indicate a logical nexus between the withheld portions of the crediting plans and the agency’s claimed exemption under section 552(b)(2) of FOIA.

Plaintiff first contends that the withheld sections of the crediting plans are not predominantly internal documents by virtue of the public’s interest in monitoring the Government’s compliance with its own merit promotion process and enforcement of export-import laws. The affidavits of Fritz and Irvin substantiate the contrary, however. Fritz’s affidavit is illustrative. He states that the withheld information is developed in each of the nine regional offices as an “internal evaluation procedure used by agency personnel in the agency’s internal promotion and placement program.” In addition, regulation subchapter S6-1 restricts the disclosure of such evaluating procedures to agency personnel responsible for internal promotion and placement. The Court is satisfied that the subject crediting plans are “not concerned with regulating the behavior of the public, but consist solely of instructions to agency personnel.” Crooker, 670 F.2d at 1075. Thus, the Court finds that the excised portions of the crediting plans are predominantly internal to the agency’s merit promotion process.

The second part of the Crooker test requires that “disclosure significantly risks circumvention of agency regulations or statutes.” Defendants maintain that release of the excised information in the crediting plans responsive to plaintiff’s FOIA requests would circumvent subchapter S6-1 of the FPM as well as the mandate of 5 U.S.C. § 2302(c) to comply with and enforce applicable civil service laws, rules, and regulations. In fact, Irvin states in his affidavit that OPM advised the Customs Service that certain portions of its crediting plans should not be released because, in OPM’s considered opinion, public disclosure of these portions would give an unfair advantage to certain candidates and compromise the utility of the plan. In contrast, NTEU asserts that unlike the present case, those cases holding Exemption (b)(2) applicable uniformly find that the release of the withheld documents would hinder law enforcement investigations, enable violators to evade the law, or possibly jeopardize the safety of agency personnel. While it is true that several courts have determined that law enforcement materials are exempt under § 552(b)(2), none of these courts held that the only circumvention contemplated by this exemption is the hindrance of a law enforcement agency’s investigatory activities. See e.g., Lesar, 636 F.2d 472 (D.C.Cir.1980); Hardy v. Bureau of Alcohol, Tobacco and Firearms, 631 F.2d 653 (9th Cir.1980). Such a rule would effectively preclude the application of Exemption (b)(2) by non-law enforcement agencies; a result apparently not intended by Congress. See e.g., S.Rep. No. 813, 89th Cong., 1st Sess. 8 (1965); H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10, reprinted in, U.S.Code Cong. & Ad.News 2418, 2427 (1966).

Plaintiff also argues that the Federal Labor Relations Authority (FLRA) recently determined in National Treasury Employees Union and NTEU Chapter 153,161, and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (February 3, 1983) and National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA No. 52 (February 3, 1983), that the FPM does not preclude the disclosure of the crediting plans. Thus, plaintiff maintains that disclosure of the plans in this case will not circumvent subchapter S6-1. Subchapter S6-1 requires Customs personnel responsible for the agency’s personnel measurement program to identify, inter alia, crediting plans which require security and control since disclosure of this material to “unauthorized persons, might provide unfair advantage to some candidates or otherwise compromise the utility of the selection procedure.” This regulation also explicitly states that such material “must not be exposed to any persons, including management officials, members of employee organizations or non-Federal personnel who do not have an official need to see the material.” Examples of security and control materials include aspects of procedures for evaluating the past behavior of candidates; i.e., examples of behavior used as criteria for the rating of information about experience if a candidate’s responses are not readily verifiable. It is important to note that FLRA, when determining whether to disclose the crediting plans in the cases cited by plaintiff, limited its holding to those plans involved in the specific case as opposed to all crediting plans of the Customs Service. FLRA’s holding in these cases appears to be consistent with the objective of subchapter S6-1 to prohibit disclosure only of those crediting plans, or parts thereof, which “might provide unfair advantage to some candidates or otherwise compromise the utility of the section procedure.” Nevertheless, contrary to plaintiff’s assertion this Court is not obliged to give any special deference to FLRA’s construction of the FPM since it is not the agency primarily responsible for administering and enforcing civil service rules and regulations. See e.g., California National Guard v. Federal Labor Relations Authority, 697 F.2d 874, 879 (9th Cir.1983). See also 5 U.S.C. § 7105(a)(1). Moreover, in National Treasury Employees Union v. Devine, Docket No. HQ120500006 (1981), NTEU attacked the validity of subchapter 6 and the implementation of Customs of this regulation under the crediting plans that are presently in dispute. The Merit Systems Protection Board found that the regulation “is rationally related to the purpose of preventing unfair advantage to any competing applicant or employee” and “is not being invalidly implemented by the Customs Service.” Id. at 2, 7-8. Likewise, it is sufficiently clear to this Court that disclosure of this information will circumvent this regulation.

The public interest in disclosure must also be weighed. Lesar, 636 F.2d at 485. The Court is of the view that public disclosure of the excised portions of Customs crediting plans would compromise the public’s interest in merit-based promotions and in preventing unfair advantages to any one group. Plaintiff’s contention that it needs the withheld information to process promotion grievances of its members and to fulfill its statutory duty of representation is not persuasive. It appears that the FLRA is the proper forum to determine this claim, which is essentially an allegation that Customs is engaging in an unfair labor practice by failing to provide NTEU with information necessary to perform its representational duties. See 5 U.S.C. § 7114(b)(4) and § 7118. Indeed, NTEU availed itself of this right in four unfair labor practice cases before FLRA challenging the non-release of the same information involved in this suit. See United States Customs Service and NTEU, Case Nos. 43-CA-698, 9-CA-993, 9-CA-842, 9-CA-20323. The Court is convinced that complete disclosure of documents containing controlled information under subchapter S6-1 is not in the public interest. Therefore, the Court finds that the subject crediting plans were properly withheld in full or in part under Exemption (b)(2) of FOIA.

An Order consistent with this Opinion will be entered on this date.

      . Although it appears plaintiff desired to withdraw its renewed Vaughn motion, the Court will nonetheless resolve this motion since it was never formally withdrawn by plaintiff.

      . The Second Circuit in U.S. Customs Service Region II v. Federal Labor Relations Authority, No. 83-40565 (2d Cir. July 20, 1984) reversed the decision of FLRA in National Treasury Employees Union and NTEU Chapters 153, 161, and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (February 3, 1983). The Court of Appeals determined that the Customs Service is not required by law to negotiate and disclose the contents of its crediting plans for the positions of Import Specialist GS 5/7 and Customs Inspector GS 9/11.


source: Caselaw Access Project

author: CAHILL, District Judge.

license: Public Domain

text:
    Billy Joe TYLER, et al., Plaintiffs, v. UNITED STATES of America, Plaintiff-Intervenor, v. Gordon SCHWEITZER, et al., Defendants.
    Cause No. 74-40-C(4).
    United States District Court, E.D. Missouri, E.D.
    Aug. 31, 1984.

      9. Contempt @=68
    Recovery of $1,734.83 as costs in prosecuting contempt action against city on behalf of pretrial detainees with respect to detention conditions was necessary and not excessive.
    10. Contempt @=68
    Payment of attorney fees and costs to plaintiff in contempt action is, in effect, sanction, against defendant which, by its nature, will discourage future violations. 42 U.S.C.A. § 1988.
    11. Contempt @=40
    Joinder of additional parties in contempt action against city on behalf of pretrial detainees with respect to detention conditions was not necessary, in view of resolution of problem on basis of voluntary cooperation by local officials, although parties had significant relationships to action.
    Frank Susman, St. Louis, Mo., for plaintiffs.
    Joseph Moore, Asst. U.S. Atty., St. Louis, Mo., for plaintiff-intervenor.
    A. Robert Belscher, John J. Fitzgibbon, Robert H. Dierker, Jr., St. Louis, Mo., for defendants.
    Curtis F. Thompson, Asst. Mo. Atty. Gen., Jefferson City, Mo., Gene Schultz, American Civil Liberties Union of Eastern Missouri, Joseph Downey, Public Defender, City of St. Louis, St. Louis, Mo., for movants.
   MEMORANDUM

CAHILL, District Judge.

This matter is before the Court on plaintiffs’ motion for contempt, defendants’ motion to join additional parties, defendants’ various motions to modify the Court’s interim orders, and plaintiffs’ motion for attorney fees and costs.

The plaintiffs are members of a class consisting of all persons who are now confined, have been confined, or will be confined in the Jail of the City of St. Louis awaiting trial because they have no money to make bail. The defendants are the Sheriff of the City of St. Louis, the City Commissioner of Adult Correctional Services, and the Warden of the City Jail. In 1974 the plaintiffs filed this successful action in which they sought and were granted relief from certain unconstitutional conditions of confinement at the City Jail. The Court imposed a limit of 228 prisoners at the facility. In 1982 the plaintiffs moved the Court to hold the defendants in contempt of court for violating this 228 prisoner limit.

Evidentiary hearings on plaintiffs’ contempt motions commenced in September of 1982, pursuant to the Court’s continuing jurisdiction over this action. Initially the Court determined that members of the plaintiff class were regularly and repeatedly being housed in other facilities, such as the Police Holdover and the Medium Security Institution known as the City Workhouse. Because these facilities were regularly and repeatedly being used to house members of the plaintiff class who but for lack of space would be housed at the City Jail, the Holdover and the Workhouse were, in fact, mere extensions of the City Jail. As extensions of the City Jail, these facilities are required to conform and adhere to the constitutionally required standards of population, sanitation, health services, and other housing standards mandated by the Court for the City Jail. See Rhem v. Malcolm, 389 F.Supp. 964, 966-68 (S.D.N.Y.1975) (pretrial detainees transferred to another facility were entitled to same constitutional standard at latter facility as court had previously found they were entitled to while incarcerated at the former facility), modified, 396 F.Supp. 1195 (S.D. N.Y.), aff''d, 527 F.2d 1041 (2d Cir.1975).

The Court found from uncontradicted testimony that the conditions at the Police Holdover differed significantly from those at the City Jail and clearly did not meet even minimum constitutional requirements. The uncontroverted testimony showed a lack of the most basic sanitary facilities including ordinary bedding, change of clothing, and items such as toothbrushes and toilet paper. Prisoners had no opportunity to wash their hands or to shower, they slept on steel slabs, and were required to use their clothing as towels and for toilet paper.

The Police Holdover, having been found to subject the plaintiffs to clearly unconstitutional conditions, has now been permanently excluded as a detention site for pretrial detainees held for more than a maximum of three days, unless an exception in writing is made by this Court. All City Jail detainees against whom warrants have been issued by a judicial officer shall be held in the Police Holdover no longer than 24 hours after the issuance of such warrants. However, on holidays and weekends these prisoners are to be held in the Police Holdover no longer than the first day after the holiday or weekend. The responsible officers of the Police Department have also agreed not to detain military prisoners and extraditable fugitives for more than three days in the Holdover.

The City Workhouse.

The City Workhouse, pending receipt of further evidence, was limited to a self-imposed maximum population of 525 prisoners. To better assess the conditions at the City Jail and the City Workhouse, the Court appointed the National Institute of Corrections (NIC) as an expert in this matter. The NIC is affiliated with the United States Department of Justice and has been working with a variety of jurisdictions on jail overcrowding problems. The Court has reviewed the various reports from the NIC. Based on these reports and other evidence, the Court is now prepared to set population limits at the City Workhouse.

The Court concludes that at this time the proper population limit at the City Workhouse is 450 inmates. This conclusion is based upon inter alia, an investigative report filed by the Commissioner of Adult Correctional Services; two NIC reports dated August 1983 and August 1984; testimony of plaintiffs’ expert Arnold Pontesso at a December 3, 1982, evidentiary hearing; a report by Pontesso dated November 22, 1982; testimony of City Workhouse Superintendent Willis Roberts on December 3, 1982; and information derived from an order adopting the recommendations of Magistrate David Noce in Andrew Harris-Bey v. Roberts, No. 81-766C(4), (E.D.Mo. June 8, 1982).

For the most part, the evidence shows that under ideal conditions, given the existing square footage, the Workhouse is capable of physically housing 525 inmates. In determining capacity, however, the amount of available square feet alone is insufficient. The amount of recreational facilities, supervisory staff, maintenance, space needed to properly implement a classification system, and the general conditions of confinement must also be considered. Several reports indicated the lack of maintenance at the Workhouse. Others stressed the need for sufficient space to properly implement a classification system. Plaintiffs’ expert Pontesso stressed the need to remove inmate beds from the dayroom area. And of special note, the Commissioner’s report stated that with the present staff 450 inmates were supervisable and adequately secure.

This limit of 450 prisoners is subject to change on a proper showing by the defendants that measures have been taken which enable them to adequately supervise and house more prisoners. Further, in the event of an emergency or mass arrest the defendants may exceed the current limit at the Workhouse for up to three days without prior court approval. The defendants must, however, make a subsequent full report to the Court on any such occurrence. The defendants must receive the prior approval of this Court to exceed this limit for more than three days.

Plaintiffs’ Motion for Contempt.

The evidence clearly shows that the defendants were in contempt of the Court’s 228 inmate limit at the City Jail in September of 1982. The defendants, however, have now purged themselves of this contempt by their subsequent actions. The Court both notes and appreciates the spirit of cooperation exhibited by the defendants. Of particular note is the limited reduction in staff at the Workhouse while similar city agencies were undergoing reductions in force because of budgetary restrictions. Also, the Court notes the temporary hiring of area lawyers as assistant public defenders. These additional public defenders expeditiously disposed of a number of criminal cases, substantially reducing the back-load of detainees being held awaiting trial. Of even greater value was the increase in budgeting by the State of Missouri for the regular staff of the Public Defender. That office handles over 90% of the confined defendants, and must be adequately staffed if the cases are to proceed to trial in a timely fashion.

The Court is proud of the fact that voluntary cooperation has obviated the need for greater judicial intrusion into this matter. The City of St. Louis has made a genuine effort to improve its correctional facilities both physically and programatically over the past 18 months. The Police Holdover is no longer being used to house City Jail detainees, the City Jail is within its prescribed limit, and the City Workhouse population has been averaging between roughly 360 to 400 prisoners for the last few months. With this average population the Workhouse should have no problem keeping within the Court’s prescribed limit of 450 prisoners.

The City is cautioned that it cannot merely rest on its laurels. It has not yet clearly determined the cause of the reduced Workhouse population; the detention population may well increase in the future. The City is directed to continue its efforts to improve its pretrial detention procedures and facilities. It must be ever remembered that the detainees have not yet been convicted. Each is awaiting trial and would be released on bond if he or she had money. No one should be punished because of his poverty.

The primary problem at the City’s detention facilities has been overcrowding caused by a large number .of pretrial prisoners. This problem has no easy solution, but pretrial prisoners have a right to be housed constitutionally. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Burks v. Teasdale, 603 F.2d 59 (8th Cir.1979). The two basic methods for alleviating overcrowding are (1) provide additional housing for pretrial detainees, or (2) reduce the number of pretrial detainees. Cost estimates for building new facilities ranged from $30,000,000 to $70,000,000, and are continually rising. The City’s fiscal position makes this alternative unfeasible until all other alternatives are explored. Even if these funds were available, it is more prudent to attempt to hasten the processing of criminal trials and expand the recognizance release program before imposing this financial burden on the beleaguered City. The establishment of effective pretrial release recommendation procedures has been repeatedly shown to lead to significant reductions in the pretrial detainee population without increasing the rates of rearrest or of nonappearance in court. See 4 D. Pryor & W. Smith, Pretrial Issues: Significant Research Findings Concerning Pretrial Release, No. 1 (February 1982).

Attorney Fees.

In light of the remedial actions taken by the defendants as a result of plaintiffs’ motion for contempt, the plaintiff class is clearly a prevailing party and is entitled to attorney fees and costs. See 42 U.S.C. § 1988. The initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Blum v. Stenson, _ U.S. _, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891, 896 (1984). The fees sought by plaintiffs’ counsel are as follows:

Attorney Hours Rate Total
Frank Susman 132.5 X $150 = $19,875.00
B. Stephen Miller III 70.8 x 90 = 6,372.00
Gene P. Schultz 19.3 x 75 = 1,447.50
Michael Waxenberg 19.0 x 75 = 1,425.00
Legal Assistants 6.0 x 55 = 330.00
Total: $29,449.50

Plaintiffs’ counsel seek to have this base figure enhanced by 33V3 percent. The Court concludes, after careful review, that the hours expended by plaintiffs’ counsel are reasonable.

A reasonable hourly rate is usually the ordinary fee for similar work in the community. The term “reasonable hourly rate” has been defined as the hourly amount to which attorneys in the area would typically be entitled for a given type of work on the basis of an hourly rate of compensation. Jorstad v. IDS Realty Trust, 643 F.2d 1305 (8th Cir.1981). Using the Jorstad standard, the Court finds $75 to be a reasonable hourly rate of compensation for attorneys Miller, Schultz, and Waxenberg. Only Miller’s hourly rate has been reduced. This is not a criticism of Mr. Miller; he has ably served in this matter. However, automatic acceptance of a lawyer’s customary charge would be an abdication of the Court’s duty to do justice to the losing as well as the winning side. “[I]t is particularly important that those rates which are applied be, in fact, reasonable hourly rates.” Jorstad v. IDS Realty Trust, 643 F.2d at 1312. The Court feels that to grant Miller a higher hourly rate than Schultz or Waxenberg, who have either comparable or superior experience, would be unreasonable.

It is reasonable, however, to grant lead counsel Susman a higher hourly rate. Using the Jorstad standard, the Court finds $150 to be a reasonable hourly rate of compensation for attorney Susman. Reflected in the determination of Susman’s reasonable fee are considerations of, inter alia, the skill requisite to perform the legal service properly, the preclusion of other employment due to the acceptance of the case, the experience, reputation, and ability of the attorney, the customary fee, and awards in other cases. While these factors were considered in assessing the other attorneys’ fees, they support the award of a higher hourly rate when applied to Susman.

Plaintiffs’ counsel seek an award of $55 as a reasonable hourly fee for work done by legal assistants. However, the Court finds that a rate of $35 per hour for legal assistants is reasonable.

As plaintiffs’ counsel point out, this case was unpopular and undesirable. This undesirability is reflected in the Court’s unsuccessful attempts at persuading attorneys to represent the plaintiff class. Invitations were extended to the local bar associations and other groups urging their participation. New came forward to argue the clear constitutional rights of the accused. Frank Susman accepted this task, and the Court agrees that his fee should be enhanced therefor. Although he was assisted by other counsel, as lead counsel Susman must suffer the umbrage of pursuing an unpopular cause. Accordingly, because of the nature and difficulty of this case, the contingent nature of the fee, and the inherent delay in payment, Susman’s fee shall be enhanced by 25 percent. The remainder of the fee award shall be enhanced by 10 percent, reflecting the contingent nature of the fee and the delay in payment due to the duration of this litigation. The resulting awards are as follows:

Attorney Hours Rate Enhancement Total
Susman 132.5 $150 = $19,875.00 25% $24,843.75
Miller 70.8 75 = 5.310.00 10% 5,841.00
Schultz 19.3 75 = 1,447.50 10% 1,592.25
Waxenberg 19.0 75 = 1.425.00 10% 1,567.50
Legal Assistants 6.0 35 = 210.00 10% 231.00
Total: $28,267.50 $34,075.50

Plaintiffs counsel seek to recover $1,734.83 as costs in this matter. These costs were necessary and are not excessive. Accordingly, this request for costs shall be granted. The Court notes that the payment of attorney fees and costs is, in effect, a sanction against the defendants which, by its nature, will discourage future violations.

Other Pending Motions.

The Court previously stayed consideration of the defendants’ motion to join additional parties and various motions to modify the Court’s interim orders. It is evident that the parties sought to be joined do have significant relationships to this matter. However, the problem has been currently resolved on the basis of voluntary cooperation by local officials, and the Court does not feel it necessary to join these parties at this time. Further, because of the commendable cooperation by local officials and by the State of Missouri, the Court also denies defendants’ various motions to modify the Court’s interim orders. No modifications are necessary in the light of the Court’s present orders.

The Court will maintain continuous jurisdiction of this matter, and the parties are directed to file interim annual reports on the City’s pretrial detention procedures and facilities starting January 31, 1985, and each year thereafter.


author: PETTINE, Senior District Judge.

text:
    Martha C. BARONE, et al. v. Mary C. HACKETT, Director of the Rhode Island Department of Employment Security. UNITED STATES of America v. RHODE ISLAND DEPARTMENT OF EMPLOYMENT SECURITY.
    Civ. A. Nos. 81-0090 P, 83-0541 P.
    United States District Court, D. Rhode Island.
    Sept. 4, 1984.

      Ernest Barone, Providence, R.I., for plaintiff in Civ. A. No. 83-0090.
    Burton Craige, Katherine A. Baldwin, Civil Rights Div., U.S. Dept, of Justice, Washington, D.C., for plaintiff in Civ. A. No. 83-0541.
    Donald Elbert, Sp. Asst. Atty. Gen., Charles McLaughlin, Dept, of Atty. Gen., Providence, R.I., for defendant in both cases.
   MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

The plaintiffs in both of these actions have moved for summary judgment on the issue of liability. The facts are not in dispute. From April 29, 1979 to August 1, 1981, the maternity benefits section of the Rhode Island Temporary Disability Act, R.I.G.L. § 28-41-8, treated women who suffered temporary disabilities due to pregnancy differently from people with other disabilities. Rather than computing disability benefits in the usual manner under the statute, pregnancy-related disability benefits were limited to a lump sum payment of $250 until May 14, 1980, and $500 from then until July 5, 1981. Women who gave birth during the period from July 5 through July 31, 1981 were allowed to choose either the $500 lump sum or receive standard temporary disability insurance (TDI) benefits only for disability weeks beginning on or after July 5. In addition, from April 29, 1979 to July 5, 1981, women disabled by pregnancy were not given waiting period credit for subsequent disabilities. See R.I.G.L. § 28-41-8(2) (1979); R.I. G.L. § 28-41-12. As a result, a woman previously disabled by pregnancy who became disabled again in the same benefit year could lose seven days of TDI benefits. The remainder of the facts and the legal analysis of this Court’s October 12, 1982 Opinion and Order in Barone v. Hackett is hereby incorporated by reference herein.

The main issue in dispute is whether Ms. Hackett is the “employer” within the meaning of Title VII of women receiving TDI benefits. The defendant argues that since Ms. Barone worked for Rhode Island Hospital Trust and Ms. DePalma worked for Arnica Mutual Insurance Company at the times of their respective pregnancies, the defendant cannot be considered their employer. However, as a previous opinion in this case recognized, Title VII liability is not limited to the entity which issues pay checks to the employee. See Opinion and Order of October 12, 1982 at 18-31.

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex____” 42 U.S.C. § 2000e-2(a)(l) (emphasis added). Therefore, in the case of Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), the court found that a hospital which refused to let a male nurse attend to female patients on a private duty basis could be liable to him under Title VII even though it did not employ him. Similarly, in Puntolillo v. New Hampshire Racing Commission, 375 F.Supp. 1089 (D.N.H.1974) , then—District Judge Bownes found that a horse trainer employed by horse owners could nevertheless sue the state racing commission under Title VII on a claim of discrimination in allocating stall space and issuing a racing license because of his national origin.

TDI benefits in Rhode Island are among the “terms, conditions, or privileges of employment” in this state. TDI benefits do not come out of the general revenues of the state, but rather come out of a separate account funded by contributions from the working men and women of the state. These contributions are mandatory and set at a certain level by state law. R.I.G.L. § 28-40-1. Once disabled, only those who have worked for a minimum period of time are entitled to TDI benefits. R.I.G.L. § 28-41-11. Moreover, the level of weekly TDI benefits (except for pregnancy before July 5, 1981) is set as a proportion of the individual’s average weekly wages. R.I. G.L. § 28-41-5.

The legislative history of the Pregnancy Discrimination Act shows some recognition that a state TDI program such as Rhode Island’s would be affected by it. As this Court noted at page 30 of its October 12, 1982 Opinion and Order,

[d]uring the Senate debate on the Act, Senator Hatch asked Senator Williams, one of the bill’s sponsors, if he believed that the Pregnancy Discrimination Act would displace state law. 123 Cong.Rec. 29,643 (Sept. 15,1977). Senator Williams responded, “I would think if a State law did select [pregnancy for special treatment], and it were found through all the tests on discrimination that classification and selection [of pregnancy] were discriminatory, then the State law that discriminated would not be permitted to stand on a test.” Id. Senator Hatch apparently agreed with this interpretation of the amendment. After discussing the state disability program which had been upheld in Geduldig v. Aiello, 417 U.S. 484 [94 S.Ct. 2485, 41 L.Ed.2d 256] (1974), he stated, “In disability programs such as that of the State of California, where employees contribute to the disability program, the added cost of mandatory maternity-related coverage [required by this Act] will be passed on to all employees, regardless of whether they are the recipients of the added protection.” Id. at 29,645.

In addition, the House Committee Report on the House of Representatives’ original version of the Pregnancy Discrimination Act refers to state TDI coverage of pregnancy such as Rhode Island’s as a “fringe benefit.” H.R.Rep. No. 948, 95th Cong., 2d Sess. 10, reprinted in 1978 U.S.Code Cong. & Ad.News 4749, 4758. The Committee Report also shows that Congress was aware of the pregnancy coverage then in place under Rhode Island law. See id. at 10-11, reprinted in 1978 U.S.Code Cong. & Ad.News at 4758-59.

The defendant has also argued that the plaintiff class may not recover damages because of the United States Supreme Court’s decision in Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), and Arizona Governing Committee For Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983). In both Manhart and Norris, the Supreme Court denied retroactive relief. The primary reason for this was that Man-hart and Norris dealt with pension plans in which contributions and benefits were set with the aid of mortality tables. Requiring employers to “top up” women’s benefits would have cost many billions of dollars. See Norris, 103 S.Ct. at 3510 (Part III of Justice Powell’s Opinion, in which Chief Justice Burger and Justices Blackmun, Rehnquist, and O’Connor joined). In addition, the Norris majority noted that Man-hart did not make the practice at issue in Norris clearly illegal. See id. Therefore the Court made the relief prospective only.

In contrast, the level of benefits and contributions under the Rhode Island TDI plan are not as rigidly governed as if set by an annuity table. Both the level of benefits and the level of contributions are set by state law. Moreover, Rhode Island should have had notice that its TDI plan could violate Title VII as amended by the Pregnancy Discrimination Act. The case is therefore not moot.

Finally, the state argues that Ms. Barone did not file a charge with the EEOC and that this Court therefore lacks jurisdiction of these cases. This Court discussed this issue at length in its October 12, 1982 Opinion and Order at 9-18, and then found against defendant Hackett. The Court today readopts that reasoning. Moreover, although the formal charge of discrimination drafted by EEOC officer Thomas Roderick did not name the state as a defendant, see formal charge and affidavit of Martha C. Barone dated July 1, 1982, Ms. Barone’s EEOC Intake Questionnaire, which she filled out herself does clearly name the State of Rhode Island as one of the entities which discriminated against her.

Therefore, the Court finds that defendants are liable under Title VII for treating pregnancy differently than other disabilities under the state TDI program.

So Ordered.


author: JOHN GARRETT PENN, District Judge.

text:
    Leo J. FREGEAU, Plaintiff, v. Gerald J. MOSSINGHOFF, Defendant.
    Civ. A. No. 81-1397.
    United States District Court, District of Columbia.
    Sept. 10, 1984.

      Robert A. Vanderhye, Washington, D.C., for plaintiff.
    John W. Dewhirst, Sol., U.S. Patent and Trademark, Washington, D.C., for defendant.
   MEMORANDUM

JOHN GARRETT PENN, District Judge.

The plaintiff filed this case, pursuant to 35 U.S.C. § 145, to authorize the defendant, Commissioner of Patents, to issue Letters Patent on certain claims presented to the Board of Appeals of the United States Patent and Trademark Office. The case came before the Court for trial and on August 31, 1984, the Court filed an Order entering judgment for the defendant and dismissing the case with prejudice. This Memorandum constitutes the Court’s findings of fact and conclusions of law. See Fed.R.Civ.P. 52.

I

On May 17, 1978, the plaintiff filed United States Patent Application Serial No. 906,790 for MAGNET BEVERAGE TREATMENT, a device which was purportedly invented by him. The application contained the Claims to which plaintiff believed himself to be entitled, those Claims being numbered 21 through 30. The Application for Letters Patent was examined by the Examiner in charge thereof who thereafter rejected the Claims on July 31, 1979. On August 24, 1979, the plaintiff filed an appeal to the Board of Appeals of the United States Patent and Trademark Office (Board), and on March 31, 1981, the Board rendered a decision affirming the rejection of Claims 21 through 30, and initiating other rejections of Claims 21, 22, 25, 27, 28 and 30. Plaintiff filed a Request for Reconsideration of the Board decision and on May 22, 1981, the Board granted reconsideration, reviewed the previous decision, and denied it without making any change in the original opinion.

Plaintiff alleges that the decision of the Board adjudging that the plaintiff is not entitled to Letters Patent for the invention as recited in Claims 21 through 30 was erroneous and contrary to law. Specifically, plaintiff alleges that the Board erred in affirming the rejection of Claims 21 through 30 under 35 U.S.C. § 101 as inoperative. That section provides:

Whoever invents or discovers any new and useful process, machine, manufacturer, or compensation of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Plaintiff contends that the Board failed to give proper consideration to the evidence presented by him during the prosecution of the application, that the Board alleged deficiencies in plaintiff’s evidence previously never alleged by the Patent and Trademark Office and without a basis in fact and law, and that the Board refused plaintiff’s proffer to physically demonstrate the invention to the Board.

Plaintiff further alleges that the Board erred in affirming the Examiner’s rejection under 35 U.S.C. § 112, as it relates to the “how-to-use” requirement of the patent laws. The first paragraph of Section 112, which is pertinent here, provides:

The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

Plaintiff contends that the Board erred in concluding that the specification does not establish with certainty that the claimed invention will operate in the manner intended, and that the Board failed to take cognizance of the plaintiffs evidentiary proofs directly on point.

The plaintiff further contends that the Board erred in rejecting Claims 21 through 30 as obvious under 35 U.S.C. § 103 in view of a publication identified as “King, Pyramid Energy Handbook, Warner, New York,” making reference to the specific pages thereto, that the Board further erred in sustaining the rejection of Claims 23, 24, 26 and 29 as obvious under Section 103 over a reference entitled “Davis and Rawls Magnetism and its effects on the living system, 1964, Exposition Press, Hicksville, New York, making reference to certain pages thereof, that the Board erred in affirming the rejection of Claims 23, 24, 26 and 29 under Section 103 over a reference identified as French Patent 1,603,804 dated July 1971 and that the Board erred in instituting a new rejection under Claims 21, 22, 25, 27, 28 and 30 based upon the French Patent. The plaintiff claims that the Board further erred in sustaining the Examiner’s rejection of Claims 27 and 28 under Section 103 as unpatentable over “like products”. Section 103 provides:

A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.

Plaintiff contends that the Board erred as a matter of law in suggesting that one of ordinary skill in the art would rely upon the credibility of the King reference, and in finding that one of ordinary skill in the art would consider the differences between the claimed invention and King obvious. Plaintiff also contends that the Board erred as a matter of law in finding that one of ordinary skill in the art would give credibility to the Davis and Rawls reference, and in finding that the differences between the invention claimed would be obvious to one of ordinary skill in the art over the Davis and Rawls publication. With respect to the French Patent issue, plaintiff contends that the Board failed to give proper consideration to the evidence presented by the plaintiff with respect to the applicability of the French Patent, and erred in holding that differences between the French Patent and the invention as recited in Claims 21 through 30 were obvious to one of ordinary skill in the art. Plaintiff also contends that the Board erred in failing to consider his evidence which he alleges unequivocally established that the products recited in Claims 27 and 28 have numerous differences in physical properties and flavor over “like products” and applied an inappropriate legal standard.

Finally, the plaintiff contends that the Board erred in affirming and instituting rejections under Claims 21 through 30 that were completely inconsistent with each other and which failed to properly consider the evidence presented by plaintiff regarding the unexpected advantageous results achieved according to the claimed invention.

The Board found that Claims 21 and 27 are representative of the appealed claims. “In those Claims the plaintiff stated as follows:

21. A method of increasing the specific gravity of a liquid selected from the group consisting essentially of ethyl alcohol containing liquids, fruit juices, coffee, tea, extruded soy protein, and chicken soup, said method consisting of essentially of the steps of
establishing a magnetic field with a tubular permanent magnet with a central bore, and having opposite radically spaced first and second pole portions of opposite polarity, and a minimum strength effective to increase the specific gravity of the liquid, and passing the liquid through the field so that the specific gravity thereof is increased.
27. A beverage selected from the group consisting essentially of ethyl alcohol containing liquids, fruit juices, coffee, tea, extruded soy protein, and chicken soup, the beverage having enhanced flavor, obtained by practicing the method steps consisting essentially of establishing a substantially constant magnetic field with a minimum strength of about 3,000 Gauss, and passing the beverage through the field so that the flavor thereof is enhanced.

The Examiner rejected all appealed claims under Section 101 on the ground that one reasonably skilled in the art reading the instant specification would consider the teachings therein highly incredible and unbelievable. The Board noted that counsel for the plaintiff acknowledged that the invention is of such a nature that the Examiner’s requirement for evidence of operability is reasonable, i.e., counsel agreed that the Examiner had established a prima facie ease of lack of operativeness. The Board carefully reviewed the entire record including appellant’s declaration evidence and found, like the Examiner, that it failed to demonstrate operativeness of the claimed method. The Board considered the matters set forth in the Lindsay declarations. Dr. Robert C. Lindsay was an expert witness called by the plaintiff who presented declarations before the Board and who testified before the Court. Dr. Lindsay, it was represented, was disinterested and had impeccable credentials in the field having worked in the field of food science for over 18 years, having received a Ph.D in Food Science, having authored or .co-authored more than 100 publications on scientific subjects related to the chemistry and evaluation of food flavor, and having chaired the Flavor Subdivision of the American Chemical Society and the Wisconsin Section of the Institute of Food Technologists. The Board found that the experimental data furnished by the plaintiff was limited to a relatively small number of samples especially in the case of the physical properties tests set forth in the first Lindsay declaration. Moreover the Board found that the differences in physical properties observed were at best minimal and did not warrant a conclusion that they were the result of any magnetochemical affect rather than other causes. The Board further found that one could not unequivocally conclude from the test data that the magnetic field somehow effected the density and the compressibility of the tested liquids and that this could be translated as resulting in subtle changes in flavors of the treated beverages observed during experimental testing. Finally, the Board concluded that it regarded the present invention as being contrary to generally accepted scientific principles and that the declarations of the plaintiff and Lindsay failed to persuade the Board otherwise. The Board found that the Examiner had a reasonable basis for questioning appellant’s allegations of utility as to the full scope of the claimed terminology and it agreed with the Examiner that the plaintiff had failed to present “clear and convincing” evidence of operativeness for the invention as broadly disclosed and claimed. For the above reasons, the Board found that the Examiner had properly rejected the Claims pursuant to 35 U.S.C. § 101.

Turning to the Claims under Section 112, the Board noted that the Examiner had rejected all the Claims under that section as “vague, indefinite and unduly broad.” The Board affirmed the Section 112 first paragraph rejection insofar as it related to the “how to use” requirement of the statute. The Board was cognizant that it is the function of the specifications and not the Claims that set forth the practical limits of operation of an invention and that accordingly one looks to the specification and not the Claims to find out how to practice the invention they define, however, the Board noted that a specification that does not establish with certainty that the claimed invention will operate in the manner intended necessarily fails to satisfy the “how to use” requirement of the statute. The Board however rejected other conclusions of the Examiner relating to Claims asserted under the second paragraph of Section 112.

Finally, the Board noted that the Examiner had rejected all Claims as obvious under 35 U.S.C. § 103 in view of King and that the Examiner had additionally rejected Claims 23, 24, 26 and 29 as obvious under Section 103 in view of Davis. The Board sustained the rejections made by the Examiner for the reasons given in his answer and also rejected the same Claims as obvious under Section 103 in view of the French Patent. The Board noted that [wjhile the French Patent does not specifically teach that the magnetic treatment would change the flavor or physical properties of the treated liquid, it does teach that the physiological characteristics of liquid products intended to be administered to the human body are changed” when a physiological fluid substance is subjected to a magnetic field to intensify the effect of the fluid on the human body. The Board set forth the above and additional reasons for rejecting all the Claims made under Sections 101, 103 and 112 with the one exception noted above.

II

A plaintiff in an action brought pursuant to 35 U.S.C. § 145 has a heavy burden. “Because the ‘Patent Office [is] an expert body preeminently qualified to determine questions of this kind’ ..., its conclusions are entitled to a strong presumption of validity.” Pro-Col Corp. v. Commissioner of Patents, 141 U.S.App.D.C. 142, 143, 436 F.2d 296, 297 (1970) (citations omitted). “In these circumstances [the court is] is authorized to reverse the decision ... only if the Patent Office did not have ‘a rational basis for [its] conclusions’ ... or if [the plaintiff] presented new evidence ... which leads to a ‘thorough conviction’ that [the plaintiff] should prevail.” Id., (citations omitted). “In trials de novo under 35 U.S.C. § 145, great weight attaches to the expertise of the Patent Office and its findings ... will not be overturned unless new evidence is introduced which carries a ‘thorough conviction’ that the Patent Office erred.” DeSeversky v. Brenner, 137 U.S.App.D.C. 369, 370, 424 F.2d 857, 858 (1970). “Deference is owed to the findings of the Patent Office.” Puharich v. Brenner, 134 U.S.App.D.C. 399, 402, 415 F.2d 979, 982 (1969).

The plaintiff and Dr. Robert Lindsay were the only witnesses called in the trial. The defendant chose to rely on the record and his cross-examination of the above two witnesses. Declarations by the plaintiff and Dr. Lindsay had been submitted to and considered by the Patent Office and the Board. Although no new witnesses were called at the trial, the plaintiff contends that he did submit “new” evidence at the trial and so much is conceded by the defendant. The defendant takes the position, however, that the new evidence does not change the result in this case and is clearly insufficient to overturn the decision of the Patent Office and the Board. It appears that most of the evidence before the Court was also before the Board. The Patent Office and the Board have the expertise in this area and as noted, the plaintiff has a heavy burden of proof. After considering the entire record in this case, the Court cannot find that there is “clear and convincing” evidence that the Patent Office and the Board erred in rejecting the plaintiff’s application. To state it differently, the Court is not “thoroughly convinced” that the Patent Office erred.

On the issues of usefulness, there appears to be little evidence to support plaintiff’s claim, and as defendant points out, few beverages were involved in the testing while the Claims encompass a large number of beverages. The subjective evaluations made by Dr. Lindsay are not persuasive. While Dr. Lindsay testified that there had been enhancement of flavor by subjecting certain liquids to the device, he admitted that any changes were only “sub-tie”. In the Addendum Report of November 18, 1981, Dr. Lindsay noted that “the mode of action of the device is also a combination of physiochemical actions which result in subtle flavor modifications rather than drastic modifications.” Plaintiff Exhibit 7 at 2 (emphasis the Court’s). He noted that “[flood quality and preferences for food ... are greatly dependent on perceptions of subtle flavor characteristics that are extremely difficult to clearly describe or define” and that the “net influence of the magnetic beverage treatment device ... [is such that it] has been difficult to convincingly establish its efficacy”. Id. The above presents the gist of the results of the subjective test and the Court finds that such evidence is insufficient to overturn the decision of the Patent Office.

Similarly, the objective test reflects that any changes in the physical properties of the tested substances are “at best minimal”. The Board found that the observed differences in viscosities were practically nil and Dr. Lindsay offered nothing to dispute that finding when he testified. The evidence relating to pH data was inconclusive as to the effect of the device, as was the other evidence relating to the purported objective changes. Moreover, the plaintiff “did not show an acceptance of his hypothesis by a substantial section of the scientific community, nor did he present the kind of evidence, such as duplication of the experiment, that is so persuasive on its own as to make it unreasonable to reject [his] claims.” Puharich v. Brenner, supra, 134 U.S.App.D.C. at 402, 415 F.2d at 982. The Court finds that the plaintiff has failed to demonstrate that the device is operative or useful and thus finds that he has clearly failed to demonstrate by clear and convincing evidence that the Patent Office and the Board erred.

With respect to whether the invention was obvious, the Court only notes that the Board has carefully considered that matter and resolved it against the plaintiff. Nothing in the record leads to a “thorough conviction” that the Patent Office and the Board were wrong.

In view of the above it is clear that the defendant is entitled to judgment and entitled to have this case dismissed. An appropriate Order has been filed.


author: MISHLER, District Judge.

text:
    The PEOPLE OF the STATE OF NEW YORK by Robert ABRAMS, the Attorney General of the State of New York, William Bell and Sharon Bell, Plaintiffs, v. The OCEAN CLUB, INC., Defendant.
    CV 82-0790.
    United States District Court, E.D. New York.
    Sept. 11, 1984.

      Lawrence S. Kahn and Alan D. Aviles, Asst. Attys. Gen., New York City, for plaintiffs.
    Max Goldweber, Mineóla, N.Y., for William Bell and Sharon Bell.
    Albert A. Gaudelli, Flushing, N.Y., for defendant.
   Memorandum of Decision and Order

MISHLER, District Judge.

The issues of fact were tried to a jury which rendered a special verdict. The jury failed to agree on the question as to whether The Ocean Club, Inc. was a private club. (1st question). On the other issues the jury found as follows:

2. Does The Ocean Club engage in a practice or policy of discriminating against Jewish guests or prospective guests or against Jewish applicants for membership?

• Yes_ No x

3. Did Charles Williams, the manager of the club, on July 9,1981 tell William Bell not to invite Jewish guests?

Yes _x_ No_

4. Was it within the scope of the authority of Charles Williams to advise members not to invite Jewish guests?

Yes_ No x

The court directed the Clerk to enter judgment in favor of the defendant and against the plaintiffs dismissing the complaint.

The Motion by The People of the State of New York

The court sustained objection to the testimony of Fred Lager, Mayor of Atlantic Beach, that was offered to show that The Ocean Club had a reputation for discriminating against Jewish applicants for membership or guests. The court also sustained objection to the introduction of statements made by Robert Kullman, Chairman of the Board of Governors of The Ocean Club, that the club was a “Christian club.”

Reputation Testimony

At trial plaintiffs offered the reputation testimony under the hearsay exception of Rule 803(20) of the Federal Rules of Evidence. That rule refers to “[rjeputation in a community ... as to boundaries ... and as to events of general history____” The matter must be ancient “or one as to which it would be unlikely that living witnesses could be obtained____” 4 Weinstein’s Evidence, p. 803-268.

Plaintiffs now cite district court cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. where reputation of discriminatory policies of the employer is admissible as evidence of why a member of the protected class failed to apply. Equal Employment Opportunity Commission v. Sheet Metal Workers, Local No. 122, 463 F.Supp. 388, 426 (D.Md.1978); U.S. v. Lee Wag Motor Freight, 7 F.E.P. 712 (D.C.Okla.1973). Non-applicants are members of the protected class under Title VII. The evidence is admitted in such cases to show that the plaintiff would have applied but for the employer’s reputation of a discriminatory policy. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 365-66, 97 S.Ct. 1843, 1869-70, 52 L.Ed.2d 396 (1977). The reputation evidence was offered to prove The Ocean Club’s discriminatory practice and policy. It was inadmissible hearsay on that issue.

Plaintiff’s counsel requested a ruling on whether he would be permitted to ask Kullman whether he had made statements that The Ocean Club was a “Christian Club.” Such a question is inadmissible under Rule 804(b)(3). However, even if the request extended to permission to use the prior statement, anticipated to be inconsistent with the testimony Kullman was about to give, the ruling would be the same. The admissibility of such statements is left to the trial court’s discretion. United States v. Oropeza, 564 F.2d 316 (9th Cir.1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978) (Prior statement offered under Rule 804(b)(3)). The use of the term “Christian Club” in no way implies a discriminatory policy. Yet its use in the trial presented a danger of unfair prejudice while showing no support for plaintiff’s contention that The Ocean Club had a practice and policy of discriminating against Jews. The potential unfair prejudice is underscored when considered with the testimony of Eugene Bechtle, an applicant for membership, who testified that Conrad Remling told him that The Ocean Club was a Christian beach club and that Jewish guests were not welcome. Kullman’s proffered statement would probably have suggested the same discriminatory attitude as Remling’s. See Workman v. Cleveland, 68 F.R.D. 562, 563 (N.D.Ohio 1975) (“the rule requires a more definite showing of the declarant’s awareness of the possibility of liability” — a ruling under Rule 804(b)(3)). Additionally, it is noted that plaintiffs offered testimony through Kullman (Tr. pp. 1346-1356) and Gloria Rogers (Tr. pp. 1537-38) that The Ocean Club was known as a “Christian beach club.” The motion by The People of the State of New York for a new trial pursuant to Rule 59(a) is denied.

Motion by William Bell and Sharon Bell

The Bells, who were members of The Ocean Club, claim a violation of Title II § 202 of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, § 296(2)(a) of the New York Executive Law (Human Rights Law) and § 40 of the New York Civil Rights Law. The claims are based on an incident that occurred at The Ocean Club on July 9, 1981. It is alleged that on that day, Charles Williams, The Ocean Club manager, upon learning that Bells’ guests were Jewish, advised William Bell that The Ocean- Club bars Jewish guests, does not admit Jews to membership; and that his Jewish guests should not return to the club (Complaint UK 16-18). The Bells claim that as a result of the discriminatory practice they resigned from the club and suffered humiliation, mental anguish and pain.

Standing

The Ocean Club renews the challenge to the right of the Bells to maintain an action based on the alleged discriminatory practices directed at their guests. The court, in denying the club’s motion for summary judgment, found the Bells had standing (see Memorandum of Decision and Order dated January 24, 1984) (citing Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)); Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir.1982); and Fiedler v. Marumsco Christian School, 631 F.2d 1144, 1149-50 (4th Cir.1980). See also Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); Halet v. Wend Inv. Co., 672 F.2d 1305 (9th Cir.1982); Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548 (9th Cir.1980).

Williams’ Discriminatory Act Attributable to The Ocean Club

The court considers the motion to alter or amend the judgment as a motion to vacate the judgment dismissing the Bells’ complaint. See Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir.1982); Smith v. Hudson, 600 F.2d 60 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979).

The critical question presented to the court is whether the court should have disregarded the finding of the jury that the discriminatory act of Charles Williams was not within the scope of his authority (Question 4) and directed judgment for the Bells based on the finding that Charles Williams told William Bell not to invite Jewish guests (Question 3).

It is undisputed that Williams, who was the club manager for 35 years, had full and complete authority to make decisions for the club that related to the day-to-day management of the club. He had the duty and authority to enforce all the rules and regulations of the club. Furthermore, at times Williams substituted for a member of the membership committee in interviewing applicants. (Marone, Tr. p. 1148, Kullman, Tr. p. 1277).

Williams received complaints of members either directly or through his staff, which consisted of Mildred Wood, the social secretary and renting agent, and Gloria Rogers, the receptionist. Members were required to record the names of their guests with the receptionist in Williams’ office. The incident of July 9, 1981 was triggered by Rogers’ suspicion that Bells’ guests were Jewish. When she passed it on to Wood, it was Williams who requested that William Bell come to the office to discuss the presence of Jewish guests.

In Hornick v. Noyes, 708 F.2d 321 (7th Cir.1983) the court was faced with “a novel question under Title II, namely, the extent to which Title II liability can be premised on religious prejudice somewhere in the causal sequence of events that lead to eviction, but on the part of persons other than the decision makers.” Id. at 324. The trial court found that other residents of the public accommodation (a YWCA residence) and an assistant resident director discriminated on the basis of race and religion. The court pointed out “that the three decision makers, Noyes, Ramey and Hoopman, were themselves not motivated by antisemitism (if indeed they even had knowledge that Mrs. Hornick was of Jewish origin).” Id. at 324 (underscoring supplied). The court found that the plaintiff showed no violation of Title II by either the YWCA or the “decision makers.” The opinion notes:

In the paradigmatic Title II case the only personal interaction, and consequently the only locus of discrimination, is the ‘vertical’ interaction between the proprietor of the motel, theater or restaurant (or his agent) who refuses to permit a minority traveler or patron to make use of the facilities; any alleged discriminatory behavior is on the part of the defendant proprietor (or his agents for whom he is responsible).

Id. at 324. See also Black v. Bonds, 308 F.Supp. 774 (S.D.Ala.1969) (discriminatory acts of waitress are attributable to owner of restaurant under Title II even though the uncontradicted testimony shows that the waitress acted in defiance of the owner’s instruction).

In Hudson Transit Lines v. N.Y. St. Human Rights App. Bd., 47 N.Y.2d 971, 419 N.Y.S.2d 960, 393 N.E.2d 1033 (1979), the New York Court of Appeals held a carrier violated Executive Law § 296, subd. 2, when a bus driver discriminated against a passenger because of his American Indian ancestry, which act of discrimination was in contravention of the carrier’s policy. See also Totem Taxi v. N.Y. St. Human Rights App. Bd., 98 A.D.2d 923, 471 N.Y. S.2d 358 (3d Dep’t 1983).

Employment discrimination cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., hold an employer liable for the discriminatory acts of employees who have authority over hiring, though committed without the knowledge or consent of the employer. Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 80 (3d Cir.1983) “[W]hen a supervisor who has plenary authority over hiring, discipline and dismissal makes an employment decision, that decision may be imputed to the employer____ It is widely recognized in racial discrimination cases that an employer is liable as a principal for Title VII violations.” (citations omitted); Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir.1982) (“[A]n employer is strictly liable for sexual discrimination by supervisors ... ”); Calcote v. Texas Educational Foundation, 578 F.2d 95, 98 (5th Cir.1978) (discriminatory acts of supervisor committed within the course of his duties are deliberate acts of the employer).

Defendant distinguishes Title II responsibility from that imposed on an employer under Title VII based on the definition of “employer” under Title VII. Under 42 U.S.C. § 2000e(b) the term “employer” includes “any agent of such a person.” The phrase includes an agent of the employer in the class to be charged for violations of the act. Jeanty v. McKay & Poague, Inc., 496 F.2d 1119, 1121 (7th Cir.1974) (agents liable for their own unlawful conduct, even though their actions were at the behest of the principal). It does not modify traditional concepts imposing liability on principals for the acts of agents. The section imposes liability on an agent within the scope of his authority for a disclosed principal.

In cases charging racial discrimination in housing based on Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., we find that the liability imposed under Title VII on an employer is similarly placed on the owner of housing. In Phiffer v. Proud Parrot Motor Hotel, Inc., supra, at 552, the court said:

Defendants also point to a lack of any evidence that the desk clerk acted under any express instructions from Chow or anyone else in a management position at ' the Proud Parrot as a fatal omission in the Phiffer’s case. Discriminatory conduct on the part of a rental agent is, however, attributable to the owner of a motel, apartment complex, or other public housing facility.

See United States v. Youritan Construction Company, 370 F.Supp. 643 (N.D.Cal.1973), aff'd in part and reversed in part on other grounds, 509 F.2d 623 (9th Cir.1975). “The duty of the owner of such a facility to obey the laws relating to racial discrimination is non-delegable.” Mar v. Rife, 503 F.2d 735, 741 (6th Cir.1974) (citing United States v. Youritan, supra, with approval and holding it is not necessary that plaintiff prove that the discriminatory acts of the agent were “with the approval or at the direction of [the owner]”); see also Northside Realty Associates, Inc. v. United States, 605 F.2d 1348, 1354 (5th Cir.1979).

Based on the foregoing review of cases, we find that the discriminatory act on July 9, 1981 of Williams in telling William Bell not to invite Jewish guests is the act of The Ocean Club as a matter of law.

The Ocean Club is a Public Accommodation

42 U.S.C. § 2000a(e) provides that the provisions of Title II “shall not apply to a private club____” In considering the issue of whether a club was private or public for Title II purposes, one court ruled as follows:

In determining whether an establishment is in fact a private club, there is no single test. A number of variables must be examined in the light of the Act’s clear purpose of protecting only ‘the genuine privacy of private clubs ... whose membership is genuinely selective’____ 110 Cong.Rec. 13,697 (1964) (remarks of Senator Humphrey). The first factor is the size of the organization and the open-ended character of its membership rolls. Most private clubs have limited membership ... and easily articulated general admission standards..... As one commentator observed, ‘Where there is a large membership or a policy of admission without any kind of investigation of the applicant, the logical conclusion is that membership is not selective____’

Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C., 397 F.2d 96, 101-02 (4th Cir.1968) (citations omitted).

New York Executive Law § 296, subd. 9, defining a place of public accommodation excludes from the definition of that term “any institution, club or place of accommodation which is in its nature distinctly private.” Power Squadrons v. N.Y. St. Human Rights App. Bd., 59 N.Y.2d 401, 412-13, 465 N.Y.S.2d 871, 876, 452 N.E.2d 1199, 1204 (1983) set out the factors for determining whether an accommodation is public or private as follows:

(1) has permanent machinery established to carefully screen applicants on any basis or no basis at all, i.e., membership is determined by subjective, not objective factors; (2) limits the use of facilities and the services of the organization to members and bona fide guests of members; (3) is controlled by the membership; (4) is non-profit and operated solely for the benefit and pleasure of the members; and (5) directs its publicity exclusively and only to members for their information and guidance.

In reviewing the pertinent factors in determining whether The Ocean Club is a private club or public accommodation, the facts stated are either undisputed or clearly established.

The Screening Process

The application for membership is uninformative. It seeks only the name and address of the applicant, the type of business, names of the immediate family and the listing of two club members as references. No investigation is made of the applicant. An interview is conducted by one member of the membership committee or at times by Mr. Williams and/or Mrs. Wood, social secretary and renting agent. The interview did not probe into the background and character of the applicant, but rather explained the facility and services available to members. Sometimes applicants were admitted without any interview. The club failed to establish any eligibility standards, i.e., economic, social, geographical, professional. No applicant for membership was rejected. Since 1979 more than 100 applications were received and all were approved. At times applicants were given access to the club’s facilities before interview. Though the membership application form requested the names of two club members as references, the club did not insist on naming members. Of 56 applications for membership in 1981 only 26 listed two names as references; 19 listed one name; and 11 applications failed to list any name as a reference. Of the 56 applications only five were supported by two sponsoring letters; 31 submitted one sponsoring letter; and 20 failed to submit any sponsoring letter.

The membership applications were approved at a meeting of the Board of Governors based on a report of the membership committee, which reported only that an application for membership was submitted. The members of the Board of Governors routinely approved the report of the membership committee and the applicants thereupon became members. The general membership is not advised of the pendency of applications. The members of the club meet the newly admitted members at a club function designed for that purpose.

Control by the Membership

The club consists of two classes of members: (1) Permanent members, known as owner members, who have paid for and own a share in the club. They have the right to vote for the club’s Board of Governors and officers. (2) Associate members who pay a season’s membership fee for a period beginning in May and expiring after Labor Day. Associate members are eligible to purchase an interest in the club and become owner members after two successive years as associate members. There is no requirement that they become owner members. Some associate members have enjoyed that status for more than ten years. There are approximately 175 owner members of the club. Prior to the summer season, there are no associate members. Some time in or about May of each year former associate members renew their application and are required to do nothing more than pay the fee assessed for the season. New applications for associate membership are also filed. Membership applications are given at the club’s offices to prospective applicants on request. There are usually 100 to 150 associate members enjoying the facilities of the club.

Solicitation of Membership

Since 1975 the club inserted advertisements in various • weekly and monthly church bulletins of five parishes soliciting applications for membership. During the period 1975 to 1981 an advertisement for membership appeared in 120 editions of various church bulletins. The club also inserted two advertisements in the New York Athletic Club publication, Winged Foot, in 1979. The publication is distributed to approximately 9500 members.

Public Use of the Tennis Courts

In October 1965, the club acquired land upon which public tennis courts had been operating, which land is contiguous to the land that the club owned and operated as the beach club. The prior owner of the land on which the tennis courts were used continued to operate them as a public facility under a lease agreement with the club. The club entered into a lease agreement as of April 15, 1981 with a successor operator. The lease agreement provides that the club share the cost of reconditioning the five tennis courts equally with the lessee:

It is understood that you will be responsible to The Ocean Club Tennis Committee, Joe Chester, Chairman, for all matters concerning the operation, maintenance of the tennis courts, including court rental fees, exclusive time for Ocean Club members of the tennis courts, etc., during the term of this agreement. In the event of any resolved [sic] dispute between you and the Tennis Committee, the matter will be referred to the Officers of The Ocean Club for final settlement and resolution.

In summary: (1) Membership in the club is extended to a large indefinite segment of the public without any standards of eligibility. There is no plan or purpose of exclusivity. (2) Associate members, constituting almost half the membership, have no voice in the control of the club. They are only members of the general public who pay a seasonal fee for the use of the club’s facilities as they might at any public accommodation. (3) The policy of soliciting members in church bulletins and the N.Y. A.C. publication is an invitation to a large segment of the public without any requirements that might indicate exclusivity. (4) The tennis courts advertised and used by the membership and the operation of which is closely supervised and controlled by the club is offered for use by the general public. Thus, I find as a matter of law that The Ocean Club is not a private club but a public accommodation.

Damages

The jury did not reach the issue of damages. At this point the Bells limit their claim for money damages to the statutory penalty provided in § 41 of the New York Civil Rights Law, i.e., not less than $100 or more than $500.

Damages are presumed when a valuable federal right is violated. Williams v. Trans World Airlines, 660 F.2d 1267, 1272 (8th Cir.1981); Wayne v. Venable, 260 F. 64, 66 (8th Cir.1919). The court may borrow from the state’s measure of damages in considering the violation of a federal right. Sullivan v. Little Hunting Park, 396 U.S. 229, 239-40, 90 S.Ct. 400, 406, 24 L.Ed.2d 386 (1969).

The court finds that William Bell is entitled to recover the sum of $500 and Sharon Bell is entitled to recover the sum of $500 from the defendant The Ocean Club, Inc.

Since the jury found that The Ocean Club did not engage in a practice or policy of discriminating against Jewish guests or applicants, it follows that there is no likelihood of a repetition of the violation of Bells’ rights. The application for injunctive relief is therefore denied.

ORDER

The judgment entered June 21, 1984 is vacated.

The Clerk is directed to enter a judgment in favor of the defendant, The Ocean Club, Inc., dismissing the claim of plaintiff, The People of the State of New York, and in favor of the plaintiffs William Bell and Sharon Bell in the amount of $500 each against the defendant The Ocean Club, Inc. and awarding attorney’s fees to be fixed upon application of the Bells upon the judgment becoming final.

SO ORDERED.

      . The exception under Rule 804(b)(3) refers to statements made by a declarant who is unavailable when the statement is "contrary to the declarant’s pecuniary interest____’’

      . 42 U.S.C. § 2000a-l provides in pertinent part:
      All persons shall be entitled to be free, at any establishment or place, from discrimination or segregation of any kind on the ground of race, color, religion or national origin____

      . Section 296(2)(a) of the New York Executive Law provides in pertinent part:
      It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color [or] national origin ... directly or indirectly, to refuse, withhold from or deny to such person any of the accommodation, advantages, facilities or privileges thereof____

      . Section 40 of the New York Civil Rights Law states in pertinent part:
      All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any such place shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof____

      . An agent, acting within the scope of his authority for a disclosed principal, is not liable for breaching a contract, City University of New York v. Finalco, Inc., 93 A.D.2d 792, 461 N.Y. S.2d 830 (1st Dep’t 1983), or for inducing a breach of contract, Marcraft Recreation Corp. v. Frances Devlin Co., 459 F.Supp. 195 (S.D.N.Y.1978).

      . The constitution and by-laws of The Ocean Club provided that an applicant be known to a member of the Board of Governors or at least two members of the membership committee and be sponsored in writing by at least two owner members in writing.

      . A typical advertisement in a church bulletin said:
      Enjoy All Summer For
      Less Than a Resort
      Week Costs
      Pool — Tennis—Ocean Bathing

      . The advertisement announced
      Your N.Y.A.C. Membership entitles you to
      Be Our Guest For a Day at The Ocean Club
      Ocean Bathing, Large Pool, Kiddie Pool, Tennis