text:
    Brian BLAZEJEWSKI, By and Through Paul BLAZEJEWSKI and June Blazejewski, his parents and next friends; and Western New York Protection and Advocacy Office, Neighborhood Legal Services, Inc., Plaintiffs, v. The BOARD OF EDUCATION OF the ALLEGANY CENTRAL SCHOOL DISTRICT and Austin Leahy, Jr., as Superintendent of the Allegany Central School District, Defendants.
    No. CIV-81-258C.
    United States District Court, W.D. New York.
    Jan. 8, 1985.

      Western New York Protection and Advocacy Office for the Developmentally Disabled, Neighborhood Legal Services, Inc., Buffalo, N.Y. (James R. Sheldon, Jr., Buffalo, N.Y., of counsel), for plaintiffs.
    Shane & Franz, Olean, N.Y. (David M. Franz, Olean, N.Y., of counsel), for defendants.
   CURTIN, Chief Judge.

I.

This matter is before the court upon plaintiffs’ motion for attorney’s fees. The complaint in this case sets forth several claims based upon a variety of legal theories, including 42 U.S.C. § 1983, the Education for All Handicapped Children Act [EHA] (20 U.S.C. §§ 1401, et seq.), and section 504 of the Rehabilitation Act (29 U.S.C. § 794). Fees are sought pursuant to 42 U.S.C. § 1988.

Since the last briefs were filed on this motion, the Supreme Court decided the cases of Smith v. Robinson, — U.S. -, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), and Irving Independent School District v. Tatro, — U.S. -, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984). These cases relate to the availability of attorney’s fees in lawsuits involving the EHA and the Rehabilitation Act. For the reasons stated below, the motion for attorney’s fees is granted.

II.

There are two distinct phases to this lawsuit. The complaint filed in April 1981 charged the defendant with failing to make the “procédural safeguards” of 20 U.S.C. § 1415 available to the plaintiffs when the Plaintiffs attempted to invoke them. Specifically, the parents of Brian Blazejewski had obtained opinions from experts who believed that Brian had a learning disability and was in need of a special education which the defendants refused to provide. See Complaint, 111125-82; 45-56; 86-96. The plaintiffs also alleged that they had requested a hearing pursuant to 20 U.S.C. § 1415 to test the validity of the defendants’ refusal to provide Brian with the program his parents and advisors thought he should have. The defendants allegedly denied this request and stated that such a hearing would be futile. Complaint, Ml 92-94.

The court held a meeting with counsel on September 16, 1981. There, counsel for the defendants agreed to hold a hearing before an impartial hearing officer. See, Affidavit of David Franz, Esq., Item 24, ¶ 10(a). This ended the first phase of the lawsuit.

The second phase of this lawsuit began in February of 1983. By this time, the hearing procedure which the defendants had agreed to undertake had been concluded. The result was a decision by the Commissioner of the New York State Education Department requiring the defendants to identify Brian Blazejewski as a handicapped student and provide him with special education services. The defendants did not implement this decision, and the plaintiffs filed a motion seeking an order directing the defendants to comply with the Commissioner’s order. I granted plaintiffs’ motion for a preliminary injunction on March 31, 1983. See Blazejewski v. Board of Education of Allegany Central School, 560 F.Supp. 701 (W.D.N.Y.1983).

III.

An award of attorney’s fees for work done up to and including September 16, 1981, is clearly proper. The complaint sought relief which would have included an order compelling the defendants to hold a hearing to determine the kind of educational program Brian should have. Five months after the complaint was filed, the defendants agreed to hold such a hearing. The complaint alleged that the failure to hold the hearing was a violation of rights guaranteed by the EHA and the due process clause. The complaint set forth 28 U.S.C. § 1343(3), (4) as a jurisdictional basis. This statute is the jurisdictional basis for actions brought under 42 U.S.C. § 1983. The complaint specifically alleged a violation of plaintiffs’ rights under 42 U.S.C. § 1983. Complaint, ¶ 123.

Attorney’s fees may be awarded to “the prevailing party” in actions to enforce a provision of section 1983. 42 U.S.C. § 1988. It is clear from the record in this case that the plaintiffs are prevailing parties to the extent that they succeeded in getting the defendants to hold hearings concerning Brian’s educational program.

To be a “prevailing party” within the meaning of section 1988, it is not necessary to win a victory after a trial. The Supreme Court has held that reaching a favorable settlement can be sufficient. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980). In Maher, the Court cited with approval a Senate Report on section 1988 which said that “for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief. S.Rep. No. 94-1011, p. 5, U.S.Code Cong. & Admin.News 1976, pp. 5908, 5912 (emphasis added).

It is evident that the commencement of this lawsuit brought about the defendants’ decision to hold the hearings sought by the plaintiffs. Therefore, I find that the plaintiffs have prevailed.

The next inquiry is whether the victory attained by winning the concession of September 1981 was a victory earned “in an action or proceeding to enforce a provision of [section] 1983.” 42 U.S.C. § 1988. I find that it was. The issue is whether this aspect of the lawsuit is actually a case cognizable under the EHA, which does not have a fee-shifting provision.

The structure and purpose of the EHA have been described in some detail by the Supreme Court (see, Smith v. Robinson, 104 S.Ct. at 3468-69; Board of Education v. Rowley, 458 U.S. 176, 180-83, 102 S.Ct. 3034, 3037-39, 73 L.Ed.2d 690 (1982)) and by the United States Court of Appeals for the Second Circuit (see, Quackenbush v. Johnson City School District, 716 F.2d 141, 145-46 (2d Cir.1983)). The Supreme Court and the Second Circuit have made it clear that plaintiffs cannot obtain attorney’s fees by the pleading trick of invoking section 1983 and circumventing the intricate procedural safeguards set forth in the EHA.

The plaintiffs did not circumvent the administrative process when they initially sought relief in this court. In fact, their reason for bringing this action was that the defendants denied them access to the administrative process. Thus, the first part of this case was essentially a due process claim. A federal-state statutory network established substantive and procedural rights, and the defendant interfered with the vindication of the substantive right to a free appropriate education by denying access to the procedures established to secure that right.

Under the aforementioned circumstances, the plaintiffs could not invoke the EHA (20 U.S.C. § 1415(e)(4)) as a jurisdictional basis to commence this lawsuit. Section 1415(e)(4) is the appropriate jurisdictional basis for actions under the EHA, and it is available only to a “party aggrieved by the findings and decision” made at the conclusion of the administrative process. 20 U.S.C. § 1415(e)(2). The Second Circuit has stated that “the absence of any prescribed remedy in the EHA for deprivations occurring prior to a final administrative decision” is a gap that should be filled by section 1983. Quackenbush v. Johnson City School District, 716 F.2d at 148, citing Hymes v. Harnett County Board of Education, 664 F.2d 410 (4th Cir.1981).

This is a case in which section 1983 was properly invoked to fill the gap in the EHA. An award of attorney’s fees is therefore indicated.

The Supreme Court’s decision in Smith v. Robinson does not compel or suggest a contrary result. In fact, there is language in the Court’s opinion which supports the result we reach here. The Court only held that

where the EHA is available to a handicapped child asserting a right to a free appropriate public education, based either on the EHA or on the Equal Protection Clause of the Fourteenth Amendment, the EHA is the exclusive avenue through which the child and his parents ... can pursue their claim.

104 S.Ct. at 3470 (emphasis added).

The EHA was not available in the present case. Further, the Court went on to state that the issue is different in a due process context. The Court noted that

while Congress apparently has determined that local and state agencies should not be burdened with attorney’s fees to litigants who succeed, through procedures outlined in the EHA, in requiring those agencies to provide free schooling, there is no indication that agencies should be exempt from a fee award where plaintiffs have had to resort to judicial relief to force the agencies to provide them the process they were constitutionally due.

Id. at 3471 n. 17.

The first phase of the present case is most accurately characterized as one in which the plaintiffs “had to resort to judicial relief” to force the defendants to provide the plaintiffs with “the process they were constitutionally due.” Id. The plaintiffs are therefore entitled to fees for commencing this action and bringing about defendant’s agreement to hold administrative hearings.

IV.

The analysis of the second phase of this lawsuit is somewhat different. It is obvious that the plaintiffs prevailed in this aspect of the case. They sought and obtained a preliminary injunction requiring the defendant to implement an administrative decision favorable to Brian Blazejewski made in January, 1983. See Blazejewski v. Board of Education of Allegany Central School, 560 F.Supp. 701. However, this aspect of the case is slightly different from Quackenbush and the scenario presented by the Supreme Court in footnote 17 of the Court’s opinion in Smith v. Robinson. Those cases discussed court action to obtain due process, whereas phase two of the present case involved court action to compel compliance with an administrative decision reached after the appropriate procedures were concluded.

In my decision granting the preliminary injunction, I stated that jurisdiction was based upon 20 U.S.C. § 1415(e)(4). 560 F.Supp. at 702. In light of the Second Circuit’s decision five months later in Quackenbush, that statement appears to be inaccurate.

The judicial review provided in the EHA is available to parties “aggrieved by the findings and decision” at the administrative level. 20 U.S.C. § 1415(e)(2). The plaintiffs in this case filed their motion for a preliminary injunction not because they were “aggrieved” by an administrative decision. Rather, the motion was filed because the defendants did not implement the favorable decision that was reached.

In Quackenbush, the court noted that the remedy for preventing access to procedural rights guaranteed by 20 U.S.C. § 1415 lies either in 42 U.S.C. § 1983 or in 20 U.S.C. § 1415(e)(2) by implication. 716 F.2d at 147. The court decided that the “better solution” was to permit the use of section 1983 to fill the gap left by the EHA. Id. at 148.

There is a similar gap in the EHA in situations wherein favorable administrative decisions are not implemented. It is, of course, plausible to conclude that a remedy for this violation is implied in section 1415(e)(2). The present case differs from Quackenbush, in that the administrative procedures had run their course when the motion for a preliminary injunction was filed. However, section 1415(e)(2) is part of a detailed scheme of provisions which grant both substantive and procedural rights. Congress limited relief under section 1415(e)(2) only to parties who are aggrieved at the administrative level. If Congress saw a need to extend the scope of section 1415(e)(2), it could easily have done so. Congress did not need to do so, because section 1983 is available to remedy deprivations of statutory rights. Compare, Quackenbush, 716 F.2d at 148. Thus, the second phase of this lawsuit is properly based upon 42 U.S.C. § 1983 to enforce statutory rights granted under the EHA.

The reasons given by the Supreme Court for precluding the use of section 1983 to assert equal protection claims to obtain attorney’s fees via 42 U.S.C. § 1988 do not apply in the present case. The evil which the Court sought to avoid was the possibility that plaintiffs would avoid the procedures of the EHA and the local/state jurisdiction over educational placements. The plaintiffs in this ease engaged in no avoidance behavior of this sort. The plaintiffs sought their injunction after obtaining a favorable administrative decision, not after circumventing the administrative process.

For the foregoing reasons, I conclude that the EHA was not available to these plaintiffs to secure their statutory rights. Although the EHA does not contain a fee-shifting provision, the proper basis of injunctive relief was 42 U.S.C. § 1983. Attorney fees are recoverable for such actions pursuant to 42 U.S.C. § 1988. Plaintiffs are therefore entitled to attorney’s fees for obtaining injunctive relief.

V.

The plaintiffs’ request for attorney’s fees is limited to the time spent preparing the complaint, obtaining the preliminary injunction, and preparing the papers in support of the present motion. Plaintiffs do not request fees for hours spent pursuing administrative remedies, so the propriety of a fee award for that type of service is not at issue here. See, attorney’s affidavit, Item 21, ¶¶ 7-8.

Counsel claims 30 hours for background work and drafting of the complaint. The requested hourly rate is $65.00. Thirty-five hours at $75.00 per hour is requested for work done to obtain the preliminary injunction in March of 1983. Finally, 25 hours at $75.00 is claimed for preparation of the motion for attorney’s fees. Accordingly, the total amount claimed is $6,450.00.

The plaintiffs’ attorneys are legal service lawyers who work for a non-profit organization. The propriety of fee awards to such attorneys is well settled. Blum v. Stenson, — U.S. -, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); N.Y.S.A.R.C. v. Carey, 711 F.2d 1136 (2d Cir.1983). The defendants do not question the amount claimed on this motion. Only the propriety of any fee award is questioned. The court has determined that fees are available for both phases of the case and does not believe the amount requested is unreasonable.

Conclusion

The motion for attorney s fees is granted. Plaintiffs counsel shall be awarded attorney’s fees in the amount of $6,450.00. Judgment shall be entered accordingly.

So ordered.

      . 42 U.S.C. § 1988 provides, in relevant part, as follows:
      In any action or proceeding to enforce a provision of [section 1983], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

      . These safeguards include the parents’ right to examine records concerning their child’s condition and educational placement (§ 1415(b)(1), the State educational agency’s duty to give written notice of its decision to begin or change a handicapped child’s placement (§ 1415(b)(l)(C)(i), the agency’s duty to give written notice of a refusal to make a change in the child’s program (§ 1415(b)(l)(C)(ii), the opportunity to present complaints regarding the identification or placement of the child (§ 1415(b)(1)(E)), and the right to a “due process hearing" by a local or state educational agency (§ 1415(b)(2), (c)). The decision reached at the end of the administrative process is subject to de novo judicial review in either state or federal court (§ 1415(e)(2), (4)).

      . There are some questions as to the date and the source of the decision to hold a hearing. My order of March 31, 1983, states that I ordered the parties to exhaust administrative remedies, i.e., begin hearing procedures. The defendants say that, on March 31, 1981, it agreed, in open court, to "set up a hearing.” This date must be incorrect, because the action was not commenced until April, 1981, and the docket sheet does not reflect any March, 1981, meeting. It does contain an entry for September 16, 1981.

      . This was also the main reason for the court’s decision to preclude reliance upon the Rehabilitation Act, 29 U.S.C. § 794, when the EHA is available. 104 S.Ct. at 3472-74.


source: Caselaw Access Project

author: MacLAUGHLIN, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Vadaain David DIXON, Defendant.
    Crim. Nos. 4-83-54(02), 4-83-76(02) and 4-83-77(02).
    United States District Court, D. Minnesota, Fourth Division.
    Jan. 16, 1985.

      James M. Rosenbaum, U.S. Atty., and Thomas B. Heffelfinger, Asst. U.S. Atty., Minneapolis, Minn., for plaintiff.
    Scott F. Tilsen, Minneapolis, Minn., for defendant.
   MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on defendant’s motion to withdraw guilty pleas under Federal Rule of Criminal Procedure 32(d). The Court held a hearing on this matter on January 2, 1985.

FACTS

The defendant Yadaain David Dixon pled guilty, pursuant to a plea agreement, to four counts of bank robbery on October 12, 1983 and October 25, 1983. In the October 12, 1983 proceeding before the Court, defendant pled guilty to two counts of bank robbery charged in an indictment emanating from the District of Minnesota (CRIM. 4-83-54(02)). The government agreed to dismiss the remaining three counts in the indictment. During that same proceeding, defendant also pled guilty to a one-count indictment which had been transferred from the District of Nebraska to the District of Minnesota (CRIM. 4-83-76(02)) pursuant to Federal Rule of Criminal Procedure 20.

On October 12, 1983 defendant had also planned to plead guilty to a one-count bank robbery indictment emanating from the District of Oregon. The necessary papers, however, had not arrived in Minnesota. Subsequently, the papers did arrive. On October 25, 1983, the defendant pled guilty to the . Oregon indictment which had been transferred to the District of Minnesota (CRIM. 4-83-77(02)) pursuant to Rule 20.

Defendant’s plea agreement contained three additional terms. First, the United States Attorney for the District of Oklahoma agreed to dismiss a bank robbery indictment pending in that district against the defendant. The dismissal was to take place at the time the Court sentenced defendant on the charges to which defendant had pled guilty on October 12 and 25, 1983. Second, the maximum term of incarceration the defendant could receive under the plea agreement was 25 years. Finally, instead of being incarcerated pending sentencing, defendant was to be placed in the Volunteers of America Halfway House. While at the halfway house, defendant could be released for up to four hours each day.

In accepting defendant’s guilty pleas on October 12 and 25, 1983, the Court took great care to ensure that defendant was making an informed and voluntary choice. Moreover, defendant was represented by counsel at each proceeding.

On October 12, 1983, the Court questioned defendant' about his mental competency to enter a plea of guilty. Defendant stated that he was competent and defendant’s attorney corroborated that fact. Tr. 14. Defendant also acknowledged that he understood the terms of the plea agreement. Tr. 6, 9. Defendant also confirmed that he was satisfied with the legal representation he had received. Tr. 11-12, 15.

The Court also explained to defendant the various trial rights he was waiving, and defendant responded in the affirmative to the Court’s questions inquiring whether he understood those rights. Tr. 16-18. Defendant also confirmed that he understood that he was waiving his right to a suppression hearing. Tr. 19-20. The Court also inquired whether any threats had been made against the defendant:

THE COURT: Has any force or have any threats been used with or against you to get you to come into court here this morning and plead guilty?
DEFENDANT DIXON: No.
THE COURT: You are here this morning because after thinking it over and after asking the questions that you thought were appropriate and getting information that you think is appropriate, you have decided it is in your best interest to be here and enter these pleas, is that right?
DEFENDANT DIXON: Yes.

Tr. 19. In addition, the Court complied with the remaining requirements of Federal Rule of Criminal Procedure 11(c) and (d). See Tr. 13-20.

Similarly, when the Court accepted defendant’s guilty plea on October 25, 1983, for the Oregon bank robbery, the Court complied with all the requirements of Rule 11(c) and (d). See Tr. 3-11. The Court again questioned defendant concerning threats or promises:

THE COURT: And — well, I will let counsel go into the facts I guess a little more completely.
Have any promises or — first of all, has any force or have any threats been used with or against you to get you to come into court here today and plead guilty to this indictment?
DEFENDANT DIXON: No.
THE COURT: You are here because you have discussed it with your attorney, thought about it, and decided it’s in your best interest to do so?
DEFENDANT DIXON: Yes.
THE COURT: Have any promises as to the sentence been made to you in connection with this plea other than what has been stated here in open court by the U.S. Attorney and was stated the last time you were here, and that is a cap of 25 years, no agreement as to fine and the other particulars that he recited for the record? Have any other promises been made to you?
DEFENDANT DIXON: No.

Tr. 10.

Under the terms of defendant’s plea agreement, defendant began staying at the halfway house on October 13, 1983, pending sentencing. The Court, however, never had an opportunity to sentence defendant because he failed to return to the halfway house on November 9, 1983. The Court issued a bench warrant for defendant’s arrest on November 15, 1983. After defendant fled from the halfway house, he engaged in further criminal activity. Defendant has been convicted for a bank robbery in Ohio which took place after he fled. In addition, charges are pending against defendant for two bank robberies in Minnesota and one in Iowa, all three of these robberies allegedly taking place after defendant fled the halfway house. Following defendant’s sentencing in Ohio, the authorities transferred defendant to Iowa to face the Iowa bank robbery charge. Subsequently, defendant has been transferred to the District of Minnesota.

On December 14, 1984, defendant moved to withdraw the guilty pleas he entered on October 12, 1983. At the January 2, 1985 hearing on defendant’s motion, defendant was represented by counsel. Defendant declined to testify on his own behalf at that hearing. Instead, defendant elected to rest on an affidavit he submitted to the Court in conjunction with his motion to withdraw his guilty pleas. The United States desired to cross-examine defendant about the statements defendant made in his affidavit but defendant declined to take the stand for the limited purposes of cross-examination concerning the affidavit.

Thus, the only evidence which defendant put forth in support of his motion was his affidavit. In his handwritten one and one-fourth page affidavit, defendant stated that:

During the period I made the agreement, I feel I was under great mental stress and would not have done so without the following compelling factors.
I was arrested by federalies in Mexico under the direction of the F.B.I. in May of 1983. I was beaten and tortured into confession that incriminated in these robberies. I was then turned over to ... agents of this government, the terrorism was not to stop there, because the agents who’s [sic] hands I was now in, were the same who had participated in the brutal treatment in Mexico. At this time I felt to say anything would have put my life in greater jerpordy [sic]____ With no one in whom I could confide, I felt to do anything less than cooperate would put my life, once again in the untenable position of more abuse. My psychological state consumed by fear was the compelling nature in which I entered the plea of guilt. Even as I stood in the court room entering a forged guilty plea. I was verbally reminded that any non-conformity would be met with the most severe and swift retribution. Whom could I ask for help.

DISCUSSION

Federal Rule of Criminal Procedure 32(d) sets the standard for a withdrawal of a guilty plea before sentencing:

the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.

See also, United States v. Bradin, 535 F.2d 1039, 1040 (8th Cir.1976). Defendant has the burden of establishing a fair and just reason for withdrawal of the guilty plea. United States v. Bryant, 640 F.2d 170, 172 (8th Cir.1981).

The only evidence which defendant puts forth to meet his burden of showing a fair and just reason for withdrawal of his guilty plea was his affidavit, as defendant did not take the stand. In his affidavit, defendant stated that he felt compelled to cooperate and plead guilty because of concern for his personal safety. Defendant states that this concern resulted from his fear that the beatings and torture he allegedly suffered in Mexico would continue in the United States. Defendant has not, however, put forth any evidence to support these bare assertions.

On the contrary, the defendant testified in open court on both October 12 and October 25, 1983 that no threats or force were used against him to cause him to plead guilty. The fact that defendant testified as to the lack of threats or force, not once, but twice, is significant. The fact that defendant testified consistently is, by itself, an indication of credibility. Moreover, the repetition of the testimony undercuts defendant’s claims. Defendant asserts that he was beaten in Mexico and that he feared such behavior would be repeated in Minnesota. Defendant has not, however, alleged any improper treatment while incarcerated in Minnesota. Thus, by the time defendant testified on October 25, 1983, 13 days had passed since Defendant’s October 12, 1983 court appearance — 13 days in which defendant makes no allegation of improper treatment. (In fact, defendant was located at the halfway house during this period.) Fears of renewed beatings, therefore, could not reasonably have influenced defendant’s testimony on October 25, 1983. The Court concludes that fears of repeated mistreatment did not in fact influence defendant’s testimony on either October 12, 1983 or on October 25, 1983. The Court finds defendant’s testimony on those two days to be credible.

Another factor which the Court should consider is whether or not the defendant has asserted his legal innocence. United States v. Barker, 514 F.2d 208, 220 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Here, because defendant has not asserted his innocence, this factor weighs in favor of denying defendant’s motion. Id.

The length of time between the guilty pleas and the attempt to withdraw them is also a consideration for the Court. Id. at 222. The longer the defendant has delayed, the more compelling defendant’s reasons for withdrawal should be. Id. In the instant case, defendant made his motion 14 months after he entered his guilty pleas.

A final factor which supports a denial of defendant’s motion concerns a codefendant, Macon Billingsley. “[I]t is appropriate [for a court] to take into consideration the fact that the defendant waited until he knew the fate of his codefendants before seeking to withdraw the plea.” Bryant, 640 F.2d at 172. Here, defendant Dixon would have been sentenced before Billingsley if Dixon had not fled. Osp February 8, 1984, the Court sentenced Billingsley to two concurrent 16 year prison terms. By now, defendant Dixon must be aware of the sentence which his codefendant received.

In sum, the Court concludes that defendant has not met his burden of establishing a fair and just reason for withdrawal of his guilty pleas. Even if defendant had established such a reason, defendant would not automatically be entitled to withdraw his guilty pleas. Once a defendant establishes a fair and just reason for withdrawing a guilty plea, the government has an opportunity to show that it would be prejudiced by the withdrawal of a plea. Fed.R. Crim.P. 32(d) advisory committee note, 18 U.S.C.A. (West Supp.1984) at 5.

Here, the government would be prejudiced by allowing defendant to withdraw his plea. The government would be prejudiced in that it would have to reassemble witnesses from Mexico and eight states other than Minnesota. See, e.g., Barker, 514 F.2d at 222. Some of these witnesses would testify in order to identify defendant. If defendant’s attempt to withdraw his guilty pleas were successful, defendant would have caused at least a 14-month delay in his trial. (This delay would be due largely to defendant’s unlawful flight.) Such a delay would prejudice the government in that the identification of a suspect can be more difficult after a considerable delay. At the very least, the delay would provide a basis for attacking the reliability of the identification witnesses. Finally, the government would be prejudiced because codefendant Billingsley has now been incarcerated, and the government is uncertain whether he would cooperate further with them in their case against Dixon. E.g., Government of Virgin Islands v. Berry, 631 F.2d 214, 221 (3d Cir.1980). Consequently, even if defendant would have established a fair and just reason for allowing withdrawal of his guilty pleas, the Court would not grant defendant’s motion because of the resulting prejudice to the government.

Based on the foregoing, IT IS ORDERED that defendant’s motion to withdraw his guilty pleas is denied.

      . Defendant pled guilty to counts I and IV, which both involved violations of 18 U.S.C. § 2113(a) and (d) (bank robbery) and 18 U.S.C. § 2(a) (aiding and abetting).

      . The government agreed to dismiss counts II and III (both involving section 2113(a) and (d) and section 2(a)) as well as count V (a conspiracy charge under 18 U.S.C. § 371).

      . The indictment alleged a violation of 18 U.S.C. § 2113(d) (bank robbery with use of a deadly weapon), but the Court accepted a plea of guilty to the lesser included offense of violating section 2113(a) (no use of a dangerous weapon).

      . The count alleged violations of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2. The Court, however did not accept the plea as to section 2113(d), but it did accept a plea to the lesser included offense of violating section 2113(a).

      . Transcript of the October 12, 1983 proceeding.

      . Transcript of the October 25, 1983 proceeding.

      . The Iowa charge was transferred to the District of Minnesota (CRIM. 4-84-106) pursuant to Rule 20. Neither the Iowa charge, nor the two most recent Minnesota charges (CRIM. 4-83-98) are involved in defendant’s motion to withdraw guilty pleas.

      . Defendant’s motion referred only to the guilty pleas which the Court accepted on October 12, 1983, i.e., CRIM. 4-83-54 and 4-83-76. Because the plea which the Court accepted on October 25, 1983, i.e., CRIM. 4-83-77, was part of the same agreement, the Court will treat defendant’s motion as encompassing CRIM. 4-83-77 as well.

      . Cheryl Donlin Dixon was also a codefendant of Vadaain Dixon. The United States Attorney for the District of Minnesota agreed to dismiss charges against Cheryl Dixon so that the United States Attorney for the District of Nebraska can proceed with charges against her. At this time, the United States Attorney for the District of . Minnesota has not dismissed the charges against her.

      . As part of Billingsley's plea agreement he agreed to cooperate with the government in locating Dixon.


author: RE, Chief Judge.

text:
    Samuel KATUNICH, Jane H.M. Rigo and Guy Serra, Plaintiffs, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Defendant.
    Court No. 81-9-01158.
    United States Court of International Trade.
    Nov. 30, 1984.
    Samuel Katunich, pro se.
    Jane H.M. Rigo, pro se.
    Guy Serra, pro se.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch (Sheila N. Ziff, Washington, D.C., on brief), for defendant.
   MEMORANDUM OPINION AND ORDER

RE, Chief Judge.

Plaintiffs, on behalf of the former employees at the Monroeville Research Laboratory of U.S. Steel, filed a petition with the Secretary of Labor on August 13, 1980, for certification of eligibility for trade adjustment assistance benefits. Upon the denial of certification, plaintiffs, acting pro se, brought this action to challenge the Secretary’s final negative determination.

This case is before the court for the fourth time. After its second remand, in Katunich v. Donovan, 8 CIT —, 594 F.Supp. 744 (1984) (Katunich III), the Secretary of Labor, on reconsideration, determined that increased imports of steel products contributed importantly to the separation from employment of the former employees of U.S. Steel’s Monroeville, Pennsylvania, Research Laboratory. 49 Fed. Reg. 40,494 (1984). Hence, the Secretary reversed his earlier determination, and decided that plaintiffs were certifiable as eligible for adjustment assistance benefits.

In Katunich v. Donovan, 5 CIT — (1983) (Katunich I), this Court reviewed the administrative record in this action, and found that it was incomplete since the Secretary failed to include the factual basis for his final negative determination. The court, therefore, remanded the action to the Secretary with instructions that he furnish the court with the basis of his final determination.

On July 11, 1983, the Secretary submitted a supplemental administrative record with additional information to support his prior determination. The court, after reviewing the supplemental record and the parties’ need for information, granted plaintiffs’ motion for disclosure, and directed that the action be submitted for determination upon the administrative record as prescribed by Rule 56.1 of the Rules of this Court. Katunich v. Donovan, 6 CIT —, 576 F.Supp. 636 (Katunich II).

In Katunich v. Donovan, 8 CIT —, 594 F.Supp. 744 (1984) (Katunich III), this Court, inter alia, found that the method utilized by the Secretary to determine the existence of “increases of imports” under section 222 of the Trade Act of 1974, 19 U.S.C. § 2272 (1982), was defective. Consequently, the court vacated the Secretary’s determination that “increases of imports” did not contribute importantly to plaintiffs’ separation from employment, and again remanded the action.

Pursuant to established policy of the Department of Labor, the Secretary has assessed import injury by comparing “increases of imports” for the year of separation with the year immediately prior to separation. Paden v. United States Dep’t of Labor, 562 F.2d 470 (7th Cir.1977); Int’l Union, United Auto. Aerospace and Agricultural Implement Workers v. Donovan, 8 CIT — (1984). It is a sound principle of administrative law that an administrative agency must either follow or adhere to existing policies and precedents or explain its non-compliance or deviation. See Secretary of Agriculture v. United States, 347 U.S. 645, 653, 74 S.Ct. 826, 831, 98 L.Ed. 1015 (1954); Atchison, T. & S.F.R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 2374, 37 L.Ed.2d 350 (1973); Public Interest Research Group v. F. C. C, 522 F.2d 1060, 1605-06 (1st Cir.1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976). Therefore, in Katunich III, the court would not consider a base period other than the one enunciated and utilized in prior cases, unless the Secretary articulated a valid reason for the departure from his prior judicially approved practice. 8 CIT —.

In Katunich III, it was evident that the Secretary’s assessment of import injury was “not only inconsistent with prior case law, but with his own rulings.” Katunich III, 8 CIT at —. Moreover, the court found that ample data existed in the record for the Secretary to determine that “increases of imports” of steel products did contribute importantly to plaintiffs’ separation from employment.

Upon remand, after applying the correct base period and reviewing all the available data, the Secretary reversed his earlier determination, and decided that plaintiffs were certifiable as eligible for trade adjustment assistance benefits. Since the Secretary has complied with the remand order of Katunich III, it is the determination of the court that the certification of eligibility of the former employees of U.S. Steel’s Monroeville, Pennsylvania, Research Laboratory is supported by substantial evidence, and in accordance with law.

Accordingly, it is

ORDERED that the Secretary of Labor’s determination is hereby affirmed.


author: MISHLER, District Judge.

text:
    Joel KATCOFF and Allen M. Wiedner, Plaintiffs, v. Clifford L. ALEXANDER, Jr., Secretary of the Army; the Department of the Army; and the Department of Defense, Defendants.
    No. 79 C 2986.
    United States District Court, E.D. New York.
    Aug. 20, 1980.
    See also, 582 F.Supp. 463.
    Joel Katcoff, pro se.
    Allen M. Wieder, pro se.
    Edward R. Korman, U.S. Atty., Eastern District of New York, Brooklyn, N.Y., for defendants; Richard P. Caro, Asst. U.S. Atty., Brooklyn, N.Y., Arnold J. Melnick, Colonel, JAGC; Scott Majors, Major, JAGC; Roy L. Dodson, Major, JAGC, Washington, D.C., of counsel.
   Memorandum of Decision and Order

MISHLER, District Judge.

Seeking both declaratory and injunctive relief against any continuation of the United States Army’s chaplaincy program, two federal taxpayers instituted this action against Clifford L. Alexander, Secretary of the Army, the Department of the Army and the Department of Defense. The plaintiffs, Joel Katcoff and Allen M. Wied■er, allege that the chaplaincy program constitutes an establishment of religion in violation of the First Amendment of the United States Constitution.

The defendants have moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings on the grounds that: (1) the plaintiffs lack standing to challenge the Army chaplaincy program; (2) the Army chaplaincy program, its authorizing statute and implementing regulations do not violate the First Amendment; and (3) the plaintiffs’ challenge presents a political question not subject to judicial review.

For the reasons set forth below the defendants’ motion is in all respects denied. The Complaint

According to the complaint the plaintiffs, citizens of the United States and residents of this district, “have paid and expect to continue to pay United States income taxes.” (¶ 3). The defendants are charged with the responsibility for the. organization and operation of the United States Army. 014).

According to paragraph 5, the Army’s chaplaincy program is authorized by 10 U.S.C. § 3073, which provides that “there are chaplains in the Army.” Paragraphs 6 and 7 set forth in some detail the operational scheme of the chaplaincy program, at least as it exists on paper. Paragraph 6 charges that the program involves the expenditure of public funds for a “comprehensive religious program” including but not limited to payment for: the salaries of chaplains and other religious personnel; religious facilities; sacred items; denominational literature and chaplain kits; religious publications of the Department of the Army; missions, retreats and religious emphasis weeks; the professional education and training of chaplains; and a religious library. The official duties of Army chaplains as set forth in 10 U.S.C. § 3547, Army Regulation 165-20 and Field Manual No. 16-5, are identified in paragraph 7. These duties include: holding appropriate religious services such as services of worship, marriages, baptisms, funerals and prayer breakfasts; providing religious education including religious classes, individual instruction, cultural groups, choral groups, leadership development programs, religious dance, drama and films; and developing pastoral relationships with members of the command through visits with soldiers and their families and through guidance counseling and other forms of spiritual assistance.

Paragraphs 9 through 23 present additional factual as well as legal allegations. Many of the factual and legal contentions are interwoven. Thus, it is charged that the United States “by design and appearance lends its prestige, influence and power to organized religion by granting commissions, rank and uniform to Army chaplains” (¶ 9); that the Army chaplaincy is designed to inculcate religious values and thus provides encouragement for religious activity among the troops (¶ 10); that because chapels and other religious facilities may be used only for religious and allied purposes the government favors religion over non-religion (¶ 11); that by granting scheduling priority to general Protestant services over Protestant denominational services the government favors one Protestant rite over others (¶ 12); and that because clergy whose denominations do not have endorsing agencies recognized by the Armed Forces Chaplain’s Board are “effectively excluded from the chaplaincy” the system favors certain religions over others (¶ 13). Moreover, it is alleged that the government promotes and enforces its own religious viewpoint through a mandatory unified curriculum of religious education (H 18). It is also contended that church participation in the recruitment and selection of chaplains, the requirement that chaplains maintain an active relationship with civilian religious bodies, and the government’s, contracts with religious organizations for the purpose of providing religious services all constitute excessive entanglement between state and church. (111120, 21, 22).

Other factual claims are set forth without legal argument. For example, it is alleged that the government authorizes the sale, donation or transfer of excess religious items to civilian religious organizations (II14), and that the Army chaplains are involved in civilian fund raising (¶ 15). Similarly, it is alleged that Army chaplains are authorized to display and distribute denominational literature (¶ 16); that the government provides religious education to “military personnel and their impressionable children” (¶ 17); and that the government provides a program of professional development for chaplains (¶ 19).

All of these practices “among others” demonstrate, according to the complaint, that “Title 10, United States Code, Sections 3073 and 3547, and the regulations and rules promulgated thereunder, insofar as they result in the expenditure of public funds for religious activities, are on their face and as construed and applied by the defendants laws respecting an establishment of religion in violation of the First Amendment of the United States Constitution....” (IF 23).

Furthermore, the complaint charges that the chaplaincy program serves to inhibit the right of military personnel to the free exercise of their religion guaranteed by the First Amendment (¶ 24). Many of the practices alleged earlier in the complaint in support of plaintiffs’ Establishment Clause claim are realleged in support of this contention. Thus, the complaint attacks the use of a uniform curriculum (II25) and the requirement that chaplains provide “general Protestant services” (II27). The complaint alleges that the free exercise rights of members of the Army are inhibited by restrictions on the types of literature which may be distributed by chaplains (¶ 26), a limitation on the chaplaincy to members of the Protestant, Catholic and Jewish faiths (If 28), educational requirements for chaplain appointments (¶ 29), and denominational quotas for chaplains based on the national population as a whole rather than the composition of the Army alone (¶ 30). Finally, it is alleged that the free exercise of religion is inhibited in that the military commander, not the chaplain or the church, has the ultimate responsibility for the religious programs in the military and because promotion decisions regarding chaplains are made by the government, not the chaplain’s church (TUT 32, 32). These numerous allegations culminate in the statement that “[t]he constitutional rights of Army personnel and their dependents to freely exercise their religion can better be served by an alternative chaplaincy program which is privately funded and controlled.” (¶ 33).

As we noted at the outset the complaint prays for both declaratory and injunctive relief. Plaintiffs ask this court to declare that the Army chaplaincy program is unconstitutional as violative of the First Amendment and to enjoin the defendants from approving or otherwise providing funds or support in any respect to religious activities in the Army.

Discussion

Standing

Initially, of course, we must determine whether the plaintiffs, solely by virtue of their status as federal taxpayers, have standing to maintain the instant action. Our point of departure in this inquiry is Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). There, the Supreme Court granted standing to federal taxpayers seeking to enjoin as unconstitutional the expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965. The plaintiffs contended that federal funds appropriated under the Act were being used to finance instruction in religious schools and to purchase necessary instructional material in violation of the Establishment and Free Exercise Clauses of the First Amendment. The Court recognized that its earlier decision in Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), “ha[d] stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who [could] assert only the interest of federal taxpayers.” 392 U.S. at 85, 88 S.Ct. at 1944. However, the Court in its own words, “under[took] a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits.” Id. at 94, 88 S.Ct. at 1949. After a careful examination of the complex and elusive concepts of justiciability and standing the Court announced that the crucial inquiry in taxpayer suits would be whether such plaintiffs, on the facts of a given case, could demonstrate “the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.” Id. at 102, 88 S.Ct. at 1954. This in turn would depend upon whether “the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assume that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ ” Id. at 99, 88 S.Ct. at 1952 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)).

Perhaps the most controversial and troublesome aspect of Flast has been the two-part “nexus” test established by the Court for determining whether a. taxpayer has such a concrete stake in the outcome of the litigation. First, the Court held that a taxpayer plaintiff must establish “a logical link between [his] status and the type of legislative enactment attacked.” 392 U.S. at 102, 88 S.Ct. at 1954. This will be the case only where the challenge is to the exercise of congressional power under the taxing and spending clause of Article I, § 8 of the Constitution. Id. Second, a taxpayer plaintiff “must establish a nexus between that status and the precise nature of the constitutional infringement alleged.” Id. This can be done only where the plaintiff alleges that the challenged action exceeds a specific constitutional limitation on the spending and taxing power. Id. at 103, 88 S.Ct. at 1954.

In Flast the plaintiffs were found to have satisfied both of these requirements. The challenge was to an exercise of Congress’s spending power under Article I, § 8. Moreover, the allegation that such spending violated the Establishment Clause of the First Amendment amounted to a claim that a specific limitation on congressional spending was being ignored. That provision, history revealed, was at least in part specifically designed as a definite limitation on the government’s ability to tax and/or spend in order “to favor one religion over another or to support religion in general.” Id.

Flast’s two-nexus test has received a substantial amount of analysis and criticism. Both those arguing for and against taxpayer standing have pointed to deficiencies in the formula announced by the Court. See, e.g., Scott, Standing In The Supreme Court — A Functional Analysis, 86 Harv.L.Rev. 645 (1973); Bittker, The Case of the Fictitious Taxpayer: The Federal Taxpayer’s Suit Twenty Years After Flast v. Cohen, 36 U.Chi.L.Rev. 364 (1969); Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601 (1968). Mr. Justice Harlan, dissenting in Flast, found there to be a remarkable “absence of any connection between the Court’s standard for the determination of standing and its criteria for the satisfaction of that standard____” 392 U.S. at 124, 88 S.Ct. at 1965. Mr. Justice Powell, in a later opinion dealing with taxpayer standing, indicated that while he would not overrule Flast on its facts, he would not “perpetuate the doctrinal confusion inherent in the Flast two-part ‘nexus’ test.” United States v. Richardson, 418 U.S. 166, 180, 94 S.Ct. 2940, 2948, 41 L.Ed.2d 678 (1974) (concurring opinion).

However, whatever may be the perplexities and uncertainties surrounding the present law of standing under Flast, that decision as controlling Supreme Court precedent, must guide our determination here. Indeed, Flast would appear to settle the issue of plaintiffs’ standing in the instant case. Plaintiffs are challenging the expenditure of federal funds for the Army’s chaplaincy program on the ground that such financing constitutes an establishment of religion proscribed by the First Amendment. Nevertheless, the defendants argue that plaintiffs are without standing. First, they contend that the plaintiffs have failed to allege in the complaint that they are presently federal taxpayers. This argument is apparently based on the language of paragraph 3 of the complaint: “Plaintiffs ... have paid and expect to continue to pay United States income taxes.” We do not think, however, that this language will support the inference which the defendants seek to draw, to wit, that plaintiffs are not now federal taxpayers. While the language may be somewhat awkward it successfully sets forth plaintiffs’ status as current federal taxpayers.

The defendants’ second contention is that the challenged governmental action here, far from being a substantial direct grant-in-aid program as in Flast, amounts to “an incidental expenditure in an otherwise unchallenged program.” Defendants’ Memorandum of Law at 19. We find this argument unavailing. True, the chaplaincy program is not a direct grant-in-aid program as was the challenged program in Flast. But neither can the chaplaincy program be characterized as “an incidental expenditure of tax funds in the administration of an essentially regulatory scheme.” Flast v. Cohen, supra, 392 U.S. at 102, 88 S.Ct. at 1954. Just what the Supreme Court had in mind by references to the Article 1, § 8 taxing and spending powers is far from clear. However, its citation to Doremus v. Board of Education, 342 U.S. 429, 79 S.Ct. 394, 96 L.Ed. 475 (1952), as an example of an earlier case where a taxpayer was properly denied standing consistent with its newly announced criteria lends little support to the view that the Court intended to exclude from taxpayer scrutiny programs such as the one now before us. Doremus involved a challenge to a state statute which provided for the reading of Bible passages at the commencement of classes in the public schools. Such governmental action obviously involved little if any public expenditures. Here, the complaint indicates that substantial sums are expended to support the many aspects of the chaplaincy program. Moreover, the defendants have conceded that approximately $65,000,-000 has been appropriated for the chaplaincy program for the fiscal year commencing in October.

Finally, the defendants argue that the plaintiffs are without standing “to assert any claim that the Army chaplaincy program is violative of the Free Exercise Clause because they have not alleged that their own free exercise rights have been infringed.” Defendants’ Memorandum of Law at 22. Plaintiffs’ response to this argument is that they obviously have not raised any claims under the Free Exercise Clause. Plaintiffs’ Memorandum of Law at 15 n. 10. Of course, the complaint casts at least some doubt on this proposition. While paragraph 1 states that the only declaratory relief sought is a judgment declaring the chaplaincy program to be violative of the Establishment Clause, the complaint also contains ten paragraphs, number 24-33, setting forth various allegations that the chaplaincy program inhibits the free exercise of religion. In any case it is now evident that plaintiffs do not challenge the chaplaincy program as violative of the Free Exercise Clause of the First Amendment.

In conclusion, while the court recognizes that the theoretical underpinnings of the Supreme Court’s decision in Flast have been severely criticized and that its two-nexus approach may eventually prove to be unworkable, we believe that under the present state of the law plaintiffs have standing here as federal taxpayers.

The Army Chaplaincy Program and the Establishment Clause

No decision cited to the court by the parties nor unearthed by our own research has squarely addressed the constitutionality of the Army’s chaplaincy program or similar programs in other branches of the armed forces. It is the defendants’ position that “a page of history is worth a volume of logic,” New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.), and that our nation’s historical practice of supporting a chaplaincy program dating back to the earliest days of the Continental Army speaks strongly in favor of its constitutionality. Moreover, the defendants urge this court to find in the various statements of several Supreme Court Justices and other federal judges regarding the military chaplaincy programs a body of constitutional jurisprudence upon which we may uphold the program’s constitutionality. Plaintiffs, on the other hand, press this court to apply the method of analysis which has by now become standard in cases involving the Establishment Clause, see Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) (plurality opinion); Roemer v. Maryland Public Works Bd., 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976); Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). As stated by Mr. Justice Blackman in Wolman: “In order to pass muster, a statute must have a secular legislative purpose, must have a principal or primary effect that neither advances nor inhibits religion, and must not foster an excessive government entanglement with religion.” 433 U.S. at 236, 97 S.Ct. at 2599. Application of this test to the Army’s chaplaincy program, plaintiffs contend, leads inevitably to the conclusion that the program is unconstitutional.

At this time we do not pass upon the ultimate question as to the chaplaincy program’s constitutionality, an issue which we believe to be of exceptional significance and not capable of easy or speedy determination. We only now decide that the defendants are not entitled to have this action dismissed on the pleadings. It cannot be said at this point in the instant litigation that “it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Sheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

We recognize, as defendants point out, that several Supreme Court Justices have expressed the view that a chaplaincy program in the military, funded by Congress, is constitutionally permissible. For example, Mr. Justice Stewart stated in his dissenting opinion in School District of Abington Township v. Schempp, 374 U.S. 203, 309, 83 S.Ct. 1560, 1617, 10 L.Ed.2d 844 (1963) (dissent):

Spending federal funds to employ chaplains for the armed forces might be said to violate the Establishment Clause. Yet a lonely soldier stationed at some faraway outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion. And such examples could readily be multiplied. The short of the matter is simply that the Establishment and Free Exercise Clauses of the First Amendment cannot accurately be reflected in a sterile metaphor which by its very nature may distort rather than illumine the problems involved in a particular case.

(Emphasis in original.) See also id. at 226 n. 10, 83 S.Ct. at 1573 n. 10 (majority opinion per Clark, J.); Id. at 296, 83 S.Ct. at 1610 (Brennan, J., concurring); Id. at 305, 83 S.Ct. at 1615 (Goldberg, J., concurring). Judges Bazelon, Leventhal and MacKinnon of the District of Columbia Circuit have expressed similar opinions. See Anderson v. Laird, 466 F.2d 283 (D.C.Cir.) (separate opinions), cert. denied, 409 U.S. 1076, 93 S.Ct. 690, 34 L.Ed.2d 665 (1972).

These statements reflect what we believe to be a proper starting point for analysis of the issues before us in that they make clear that in some circumstances the need to accommodate the strictures of the Establishment Clause with the guarantees of the Free Exercise Clause might require a displacement of the traditional Establishment Clause analysis which plaintiffs urge us to apply. Thus, just as some courts have indicated that prison chaplaincy programs are constitutional because they provide access to religious opportunities not otherwise available to the inmate population, see, e.g., Theriault v. Silber, 547 F.2d 1279 (5th Cir.1977), cert. denied, 434 U.S. 871, 98 S.Ct. 216, 54 L.Ed.2d 150 (1977), the opinions of the judges which we have cited properly reason that because of the unique aspects of military life, especially the frequent isolation of military personnel, and the attendant inaccessibility of private religious facilities, the expenditure of public funds for a military chaplaincy program is justified and, indeed, perhaps even mandated.

Yet, to accept the proposition that a chaplaincy program may be tested under standards which would be inappropriate in other areas is a far cry from saying, as the defendants do, that it should not be tested at all. In our view, we would be abdicating our judicial responsibility if we were merely to hold that because a chaplaincy program may in some circumstances be constitutional, the program challenged here does, in fact, pass constitutional muster. In other words, under this rationale a chaplaincy program is constitutional under the Establishment Clause so long as its existence is reasonably necessary to insure that the Free Exercise rights of military personnel will not be abridged. Where a program does not meet that end or goes beyond that goal its constitutional justification evaporates.

The complaint at issue here, broadly construed, alleges that the program suffers from such infirmities. Without again reciting the details set forth above, we simply point out that the complaint alleges facts which, if proven, might well establish that the chaplaincy program is so overly broad in scope as to constitute a governmentally sponsored program of religious proselytism, and at the same time sadly deficient in providing religious support services to members of certain religious faiths. If these facts were to be proven, then, under a strict application of the standards we have enunciated the program would, at the least, be constitutionally suspect.

We would note in addition, however, that a determination of the validity of plaintiffs’ claims cannot be made in a vacuum. Even if they could prove that the present chaplaincy program was not perfectly tailored to meet the goal of providing otherwise unavailable religious facilities to military personnel they would not necessarily, by that demonstration alone, establish the program’s invalidity. Defendants appear to argue that there are additional justifications for the present posture of the chaplaincy program. We must confess that at the present time we cannot say with certainty what these justifications might be. The defendants have yet to do more than hint at their existence. Nevertheless, we certainly think that the defendants should be given the opportunity to articulate these considerations and to develop a proper factual foundation.

In short, we conclude that plaintiffs have alleged sufficient facts to withstand the defendants’ motion to dismiss. We do not in so holding mean to intimate in anyway what the final outcome of this litigation will be. Our decision here should be read as indicating nothing more than the court’s belief that the plaintiffs’ claims cannot be given full and fair consideration in the absence of a fully developed factual record.

Accordingly, the defendants’ motion to dismiss the complaint is denied.

It is

SO ORDERED.

      . It should be obvious from our rather detailed and lengthy description of the complaint that the plaintiffs have totally failed to comply with the applicable rules of pleading. Rule 8(a) of the Federal Rules of Civil Procedure provides that a complaint shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief____” Here, plaintiffs have pleaded a random assortment of what might have been called, under older rules of pleading, ultimate facts and evidentiary facts as well as legal theories and legal conclusions. We have overlooked all of this, however, in an effort to get at the heart of the plaintiffs’ case.

        . Defendants’ Memorandum at 21 n. 17.

      . The defendants have argued that the instant case presents a nonjusticiable political question unreviewable by this court. Defendants’ Memorandum at 49-59. Essentially, it is their position that the terms upon which Army personnel are provided with opportunities for religious worship must be left to the legislative and executive branches of the government.
      Defendants rely heavily on Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). There the Supreme Court held that a nonjusticiable controversy was presented where students at Kent State University sought to have the federal district court assume continuing supervisory authority over the activities of the Ohio National Guard. Mr. Justice Burger speaking for the Court stated:
      It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible — as the Judicial Branch is not — to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments----
      413 U.S. at 10, 93 S.Ct. at 2446.
      In our view reliance upon Gilligan v. Morgan is misplaced. First, the plaintiffs here do not seek continuing judicial oversight over any aspect of ■the Army’s program. They simply ask us to declare that the chaplaincy program as now run is unconstitutional and to enjoin further financing by Congress. Even more to the point is the fact that what is involved in this case is an essentially nonmilitary program separable from the vast bulk of Army operations which must be developed and administered by those capable of exercising professional military judgment. Of course, the Army’s chaplaincy program cannot be reviewed in isolation. However, that we may have to defer to the opinion of military experts on certain aspects of our consideration does not, in our view, wholly preclude our inquiry.


author: ROBERT L. CARTER, District Judge.

text:
    FINANCIAL INFORMATION, INC., Plaintiff, v. MOODY’S INVESTORS SERVICE, INC., Defendant.
    No. 81 Civ. 6001 (RLC).
    United States District Court, S.D. New York.
    May 23, 1983.
    See also 2d Cir., 751 F.2d 501.
    Lieberman, Rudolph & Nowak, New York City, for plaintiff; David A. Kalow, New York City, of counsel.

      Satterlee & Stephens, New York City, for defendant; Robert M. Callagy, New York City, of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

This is a copyright action in which the plaintiff, Financial Information, Inc. (“FII”), charges the defendant, Moody’s Investors Service, Inc. (“Moody’s”), with copying the information that FII gathers and publishes each day on bonds called for redemption. Moody’s has moved for summary judgment pursuant to Rule 56, F.R. Civ.P., alleging, first, that the daily bond data that FII publishes are individual facts and therefore not copyrightable as compilations and, second, that FII has not registered its daily called bond service with the United States Copyright Office.

FII, a publisher of financial information incorporated and with its principal place of business in New Jersey, distributes a daily called bond service to subscribers. Sheekey Aff. II2. As part of this service, FII sends its subscribers notices, in the form of index cards, of approximately ten called bonds each business day. Id. On each card, FII publishes the name of the issuer of the bond, the type and interest rate of the bond, the redemption price, the redemption date, the redemption agent, and the serial numbers of the bonds called. Exh. 1 to Complaint. At the end of each year, FII publishes a cumulative volume of these called bonds by editing, alphabetizing and pasting together the index cards for each year. Sheekey Aff. U 2.

Moody’s, a Delaware corporation with its principal place of business in New York, is also a financial publisher. Complaint !1¶ 2, 10. Among defendant’s publications is its Municipal & Government Manual, which contains, inter alia, listings of bonds called for redemption. Callagy Aff. H 3. Moody’s supplements this manual with semiweekly fact sheets that contain updating information about called bonds and other matters. Id.

FII and Moody’s are clearly competitors, and Moody’s subscribed to FII’s called bond service until this action was brought on September 28, 1981. Sheekey Aff. 112.

When a municipality or other government body calls a bond for redemption, it publishes a notice of the call in one or more newspapers. Id. 113. Since all such notices are not published in a single place or journal and since issuers stop paying interest on bonds after the redemption date, financial institutions, which are ill-equipped to keep track of the thousands of call notices each year, subscribe to called bond services. These services keep tabs on and report all relevant calls. Id.

FII asserts that it undertakes considerable effort and expense in collecting, assembling and rewriting its notices on called bonds. Sheekey Aff. II4. FII says it obtains call information by subscribing to many newspapers and financial publications around the country, by placing itself on the mailing lists of many issuers and redemption agents and by following up reported calls by telephone and through correspondence. Id. According to FII, its personnel regularly check public notices and advertisements in at least 20 publications, including the Bond Buyer, the Boston Herald American, the Toronto Globe, the Lake Tahoe News, the Pittsburgh Post Gazette, and the New Orleans Times Picayune. Exh. D to Callagy Aff. Although FII has not stated how much it spends collecting call information, it says a subscription to its daily called bond service costs almost $300 per year. Sheekey Aff. 114.

FII asserts that since 1974, defendant’s Municipal & Government Manual, rather than obtaining its call information by perusing newspapers, financial publications and municipalities’ mailed announcements, has simply copied its call notices from FII’s daily cards. Complaint II13. In 1980, when FII first suspected that Moody’s was copying FII’s data on called bonds, FII inserted intentional errors into its daily cards. Id. 1114. Moody’s evidently copied FII’s deliberate errors. Exh. 1 to Complaint. FII next checked to see whether Moody’s had copied accidental errors that had appeared in its daily cards, and FII discovered that Moody’s had copied such accidental errors since 1974. Complaint 1116. A mathematician hired by FII estimated that the eight instances in which FII found that Moody’s had reproduced its errors indicated that at least 50 percent of the municipal and government bond information published by Moody’s was copied from FII’s bond service. Robbins Aff. 1111 5-6.

All of FII’s daily call cards carry a notice of copyright. Complaint 1117. FII says that it has registered its yearly compilations with the Copyright Office, id. II18, and asserts that the certificates of registration that it has received cover not only the annual volumes, but also each day’s cards, which are ultimately incorporated into the cumulative volumes. While acknowledging that the annual compilations were registered, Moody’s notes that FII never registered its daily cards with the Copyright Office. Callagy Aff. ¶ 9. It maintains that because this is so and because, in its view, the certificates for the annual volumes do not cover the cards published each day, the daily cards are not protected by the copyright laws. Furthermore, Moody’s argues that the daily cards are not copyrightable.

DETERMINATION

Moody’s makes two basic arguments why in its view the called bond data that FII publishes each day cannot receive copyright protection: first, that the daily data are facts and therefore not copyrightable and, second, that the daily data are noc compilations and are therefore not copyrightable as such.

Moody’s is certainly correct in maintaining that facts are not copyrightable. See, e.g., Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir.1981); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974, 979 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). In Hoehling, the Second Circuit rejected the appeal of the author of a history about the Hindenberg dirigible who asserted that his copyright was infringed by a television studio that used his book as one of its historical sources in making a show about the dirigible. Judge Kaufman wrote that “factual information is in the public domain[,]” 618 F.2d at 979, and that “the protection afforded the copyright holder has never extended to history, be it documented fact or explanatory hypothesis.” Id. at 974. What is of course protected is “the author’s original expression of particular facts.” Id.

While facts have not been given copyright protection, compilations of such facts traditionally have been. See, e.g., Schroeder v. William Morrow & Co., 566 F.2d 3 (7th Cir.1977) (directory of nurseries); Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (9th Cir.1937) (telephone directory); Jeweler’s Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83 (2d Cir.), cert. denied, 259 U.S. 581, 42 S.Ct. 464, 66 L.Ed. 1074 (1922) (jeweler’s directory); List Publishing Co. v. Keller, 30 F. 772 (C.C.S.D.N.Y.1887) (social register); see also 1 Nimmer on Copyright § 2.04[B] (1982). In a landmark copyright case, the Second Circuit succinctly stated the rule:

‘A man’s name, his occupation, his place of business, and his residence are none of them subjects of copyright.’
But, if a man compiles a book containing such information about the residents of a particular place, he may ... copyright it as a whole, notwithstanding the fact that the separate parts of which it is composed are not copyrightable.

Jeweler’s Circular Publishing Co., supra, 281 F. at 87; see. also Schroeder v. William Morrow & Co., supra, 566 F.2d at 5 (“An original compilation of names and addresses is copyrightable even though the individual names and addresses are in the public domain and not copyrightable”). Indeed, the Copyright Act of 1976 expressly provides for the protection of compilations, 17 U.S.C. § 103(a), which the Act defines as works

formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.

17 U.S.C. § 101.

Thus, the pivotal question becomes whether FII’s daily called bond data can be considered a compilation. Although it acknowledges that FII’s annual volumes of called bond data are copyrightable compilations, Moody’s asserts that the daily data are merely individual facts that cannot be considered compilations. Moody’s argues that the ten or so index cards containing bond data that are published each day are not such a “collection and assembling of preexisting ... data ... that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101. Moody’s relies most heavily on Triangle Publications, Inc. v. New England Newspaper Publishing Co., 46 F.Supp. 198 (D.Mass.1942), in which then District Judge Wyzanski stated:

To constitute a copyrightable compilation, a compendium must ordinarily result from the labor of assembling, connecting and categorizing disparate facts which in nature occurred in isolation. A compilation, in short, is a synthesis. It is rare indeed that an analysis of any one actual occurrence could be regarded as a compilation. For an account of a single event to be subject to copyright, it must have individuality of expression or must reflect peculiar skill and judgment.

Id. at 201. Defendant’s argument is, in essence, that FII, in publishing its bond data index cards, records only public information about single public occurrences, i.e., bond calls, and does so without adding any “peculiar skill and judgment.”

Moody’s argument misses the mark, however. In publishing ten or twelve index cards each day, fifty or sixty each week, and some 2,500 in each year’s cumulative volume, FII is unquestionably, to use Judge Wyzanski’s words, “assembling, connecting and categorizing disparate facts which in nature occurred in isolation.” Id. The FII employees who put together the daily called bond service assemble into one handy compilation disparate information about thousands of calls by hundreds of municipalities and other governmental entities in dozens of states. The principal thrust of the opinion in Triangle Publications, Inc., supra, was that information in a single daily race result chart which was gleaned from the official race track program or bulletin boards was not copyrightable, but when dozens or hundreds of such charts were assembled, the charts then constituted a compilation and all the information in them was protected from any copying that went beyond fair use.

In amassing its bond data, FII is not just assembling a handful of statistics about a single, solitary occurrence, but is instead weaving together into a handy, coherent entity thousands of facts that “occurred in isolation.” Id. Such a laborious, painstaking compilation is certainly the type that the copyright laws aim to protect. Schroeder v. William Morrow & Co., supra, 566 F.2d at 5-6; Leon v. Pacific Telephone & Telegraph Co., supra, 91 F.2d at 486; Dow Jones & Co. v. Board of Trade, 546 F.Supp. 113, 115 (S.D.N.Y.1982) (Carter, J.); National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F.Supp. 89, 94-95 (N.D.Ill.1982); see also Jeweler’s Circular Publishing Co., supra, 281 F. at 88 (“The man who goes through the streets of a town and puts down the names of each of the inhabitants, with their occupations and their street number, acquires material of which he is the author. He produces by his labor a meritorious composition, in which he may obtain a copyright”).

To accord copyright protection to the annual compilation but deny it to each daily component would negate the value of the protection accorded the yearly compilation. If a competitor were to be able to copy each day's quantum of FII’s called bond cards with impunity, the copyright protection given to the annual volume would be rendered meaningless as to that copying competitor. In urging the court to regard each day’s quantum of cards in isolation, unrelated to all the cards coming before and coming after, Moody’s in effect invites the court to see only the individual points in a pointillist painting and to be blind to the overall design. The traditional notion of blind justice does not require the court to be so insensitive to reality.

Just as an annual aggregation of called bond data should be considered a compilation, so, too, should each serial ingredient— be it the quarterly, monthly, weekly, or daily component — be considered a species of compilation. If a cumulative volume warrants copyright protection as a compilation, then so do the serial components that ultimately comprise the cumulative tome— so long as there is adequate copyright notice on each component. Cf. Triangle Publications, Inc., supra, 46 F.Supp. at 202 (“The copyright covers the whole compilation____ That is, [it] covers the new pattern as such, including new threads, old threads, threads of fact from the public domain, and threads of copyrighted material”).

The court’s holding that each installment of a compilation that appears in serial components deserves the protection of the copyright laws is buttressed by the underlying goals of those laws. “[T]he real purpose of the copyright scheme is to encourage works of the intellect, and ... this purpose is to be achieved by reliance on the economic incentives granted to authors and inventors by the copyright scheme.” Universal City Studios, Inc. v. Sony Corp. of America, 659 F.2d 963, 965 (9th Cir.1981), cert. granted, 457 U.S. 1116, 102 S.Ct. 2926, 73 L.Ed.2d 1328 (1982). Although they are not classic works of the intellect, compilations are the products of painstaking industry that serve the needs of their readers, albeit in a way different from more creative copyrighted works. To deny copyright protection to FII’s daily called bond service, even while preserving it for the annual cumulative volumes, would go a long way toward destroying FII’s incentive to collect and assemble bond data in a speedy, systematic way for the convenience of its subscribers. Although according protection to compilations “does not fit nicely into the conceptual framework of copyright law,” National Business Lists, Inc., supra, 552 F.Supp. at 92; accord Miller v. Universal City Studios, Inc., supra, 650 F.2d at 1369-70; 1 Nimmer on Copyright § 3.04 (1982), such protection of the compiler’s diligence is essential “because that is the only protection which is meaningful.” National Business Lists, supra, 552 F.Supp. at 95; see also Denicola, Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works, 81 Columbia L.Rev. 516, 528-31 (1981). Such protection is no less necessary for the serial installments of a compilation than for the cumulative compilation.

Lastly, Moody’s argues that FII’s action should be dismissed on the ground that the plaintiff has not satisfied the requirements of 17 U.S.C. § 411, which states that “[n]o action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title.” Moody’s contends that the daily index cards should be treated as related, but nevertheless distinct, works and that each should have to be registered separately.

FII argues, however, that its registration of its annual compilations covers the individual cards and thus the cards need not be registered one by one. FII asserts that it was proper for it to register just its cumulative volumes on the ground that 17 U.S.C. § 408(b)(2) requires the registration of the “best edition” of a work, and, according to FII, the annual volume is the best edition. Furthermore, FII states that it would be extremely cumbersome and expensive for it to register 2,500 index cards each year. See H.R.Rep. No. 1476, 94th Cong., 1st Sess. 154 (1976), reprinted in 1976 U.S. Code Cong. & Ad.News 5659, 5770; S.Rep. No. 473, 94th Cong., 1st Sess. 136 (1976) (“the requirement for separate registrations where related works or parts of a work are published separately has created administrative problems and has resulted in unnecessary burdens and expenses on authors and other copyright owners”).

The Copyright Act of 1976 authorizes the Register of Copyrights to allow a number of related works to be registered together as a group. 17 U.S.C. § 408(c)(1). At the time that this litigation was commenced, however, the Register had not implemented regulations allowing for such group registration. Exh. H to Defendant’s Motion for Summary Judgment.

Inasmuch as the annual compilations are nothing more than the aggregation of the index cards, it is more appropriate to regard the cards as integral parts of the overall compilation than as distinct, but related works. Because this is so, the court holds that the registration of the annual compilations covers the integral parts of those compilations, i.e., the daily cards, and that it was proper for FII to register the cumulative volumes as the best editions of the aggregated cards.

That Moody’s allegedly began infringing the daily cards before the annual volumes were registered need not delay us. This is so because so long as there was adequate notice, a copyright action may stand notwithstanding the plaintiff’s failure to register its work until after infringement began. Primcot Fabrics v. Kleinfab Corp., 368 F.Supp. 482, 485 (S.D.N.Y.1974) (Gurfein, J.). In the instant case, FII gave clear notice of copyright on each of its cards.

Even if the cards were to be viewed, in the alternative, as related works, the court would be reluctant to hold that FII had to register each card separately, first, because it would be unduly taxing on both FII and the Copyright Office for FII to make 2,500 registrations for 2,500 index cards each year and, second, because, through no fault of FII’s, the Register has still not issued regulations oh group registration.

For the foregoing reasons, defendant’s motion for summary judgment is denied.

IT IS SO ORDERED.

      . The court has jurisdiction of this action pursuant to 28 U.S.C. § 1338(a).

      . FII has also brought a claim of unfair competition against Moody's pursuant to 28 U.S.C. § 1338(b). Complaint ¶¶ 22-28.

      . It has long been recognized that "one of the most significant evidences of infringement [is] the copying of errors____” Callaghan v. Myers, 128 U.S. 617, 662, 9 S.Ct. 177, 190, 32 L.Ed. 547 (1888); accord Southwestern Bell Telephone Co. v. Nationwide Independent Directory Service, Inc., 371 F.Supp. 900, 906 (W.D.Ark.1974); SubContractors Register, Inc. v. McGovern's Contractors & Builders Manual, Inc., 69 F.Supp. 507, 510 (S.D.N.Y.1946) (Caffey, J.).

      . There is some dispute over how far subsequent compilers may go in relying on a prior compilation before they go beyond fair use. On one hand, there is the strict view: " ‘[I]t is safe to say that the compiler of a general directory is not at liberty to copy any part, however small, of a previous directory, to save himself the trouble of collecting the materials from original sources.’” National Research Bureau, Inc. v. Kucker, 481 F.Supp. 612, 615 (S.D.N.Y.1979) (Owen, J.), quoting List Publishing Co. v. Keller, 30 F. 772, 773 (C.C.S.D.N.Y.1887). At the same time, there is the recognition that ”[b]ecause copyright protection for compilations of factual material cannot be reconciled with the general principles of the copyright laws, ... [a]uthors of compilations ... must be held to grant broader licenses for subsequent use than persons whose work is truly creative." Dow Jones & Co. v. Board of Trade, 546 F.Supp. 113, 120 (S.D.N.Y. 1982) (Carter, J.), citing New York Times Co. v. Roxbury Data Interface, Inc., 434 F.Supp. 217, 221 (D.NJ.1977).
      What is undisputed, however, is that "[w]hat a subsequent compiler cannot do is copy from an already, copyrighted directory and thereby save himself the labor and expense incurred by the prior compiler." Southwestern Bell Telephone Co., supra, 371 F.Supp. at 906, citing Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (9th Cir.1937); accord Northwestern Bell Telephone Co. v. Bedco, 501 F.Supp. 299, 302 (D.Minn.1980), Although the Second Circuit has taken a liberal view regarding the extent to which a subsequent author may use facts and historical interpretations contained in the work of a prior author, it has stated that “[a] verbatim reproduction of another work, of course, even in the realm of nonfiction, is actionable as copyright infringement.” Hoehling v. Universal City Studios, Inc., supra, 618 F.2d at 980.

      . Ironically, National Business Lists involved the defendant’s parent corporation, Dun & Bradstreet, Inc., which charged in a counterclaim that National Business Lists had infringed a business directory that it had compiled.

      . In saying this, the court is not addressing the question whether a one time only assembling of ten called bond index cards on a given day — not part of a yearlong compilation of such cards— would constitute a copyrightable compilation. Cf. Triangle Publications, Inc., supra, 46 F.Supp. at 201. What the minimum amount of labor required is to put together a copyrightable compilation is a question left for another day.

      . In Miller, there is a long dictum discussing the difficulty in reconciling some of the directory cases with the general rule that facts are not copyrightable. 650 F.2d at 1369-70. The Miller dictum concluded that "it may be better to recognize the directory cases as being in a category by themselves rather than to attempt to bring their result and rationale to bear on nondirectory cases[,]” and that "the rule is now well settled that [directories] can be copyrighted[.]” Id. at 1370.
      The Miller court seemed to say that the copyright protection accorded directories and other compilations protects the compiler's selection of facts and arrangement of the facts, but not the compiler’s industry. In other words, the Miller court apparently stated that the copyright laws will not protect a compiler against a subsequent compiler who copies or bodily appropriates the prior compiler's labor, but does so without copying his format or arrangement. This discussion inexplicably ignores the many cases that state that the industriousness and diligent application of the compiler, as distinct from his arrangement of the facts, deserve copyright protection. Leon v. Pacific Telephone & Telegraph Co., supra, 91 F.2d at 485-87; Jeweler’s Circular Publishing Co., supra, 281 F. at 87-88; Southwestern Bell Telephone Co., supra, 371 F.Supp. at 905-06; Triangle Publications, Inc., supra, 46 F.Supp. at 202; see also Dow Jones & Co., supra, 546 F.Supp. at 115; National Business Lists, Inc., supra, 552 F.Supp. at 95.
      The court believes that the better rule is that copyright protection should be afforded the compiler’s industry, even when his arrangement is not copied, because oftentimes that is the only way that protection will prove meaningful. See Leon, supra, 91 F.2d at 485-87; National Business Lists, Inc., supra, 552 F.Supp. at 95; see also Denicola, Copyright in Collections of Facts, supra, 81 Columbia L.Rev. at 528-31; Note, The Denial of Copyright to an Author’s Research, 5 W.New.Eng.L.Rev. 103, 121 (1982) ("It is the very labor involved in collecting, organizing, and compiling facts for a compilation that must be protected____ Without ... protection, few would undertake to compile a directory or draw a map since the substantial labor necessary to complete the task might be sacrificed by the wholesale appropriation of the work by a copier”).